Aboobackar @ Rajan v. State of Kerala and Others

_IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN_ _&_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 21[ST] DAY OF OCTOBER 2021 / 29TH ASWINA, 1943_ ## _WP(CRL.) NO. 174 OF 2021_ ## _PETITIONER/S:_ _ABOOBACKAR @ RAJAN, AGED 77 YEARS, S/O.ABOOBACKAR, SAKEENA MANZIL, KAYAMKULAM MURI, ALAPPUZHA DISTRICT, NOW RESIDING FOR RENT AT PUTHUPURACKAL THEKKETHIL VEETTIL, ERUVA MURI, PATHIYOOR VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. C.RAJENDRAN K.VIJAYAN_ ## _RESPONDENT/S:_ _1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOME), GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DISTRICT MAGISTRATE, CIVIL STATION, ALAPPUZHA-688 001. 3 DISTRICT POLICE CHIEF, OFFICE OF THE DISTRICT POLICE CHIEF, ALAPPUZHA-688 011. 4 STATION HOUSE OFFICER, KAYAMKULAM POLICE STATION, KAYAMKULAM, ALAPPUZHA-690 502. 5 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM-695 012. 6 THE SUPERINTENDENT CENTRAL PRISON, VIYYUR, THRISSUR-680 010. ADGP SRI.GARCIOUS KURIAKOSE ASSISTED BY GP SRI.K.A.ANAS_ _THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION_ _ON 21.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ W.P.(Crl.).No.174 of 2021 2 ## **K.VINOD CHANDRAN & ZIYAD RAHMAN.A.A, JJ.** --------------------------------------------------------------------------W.P.(Crl.).No.174 of 2021 (S) ---------------------------------------------------------------------------Dated this the 21[st] day of October, 2021 ## **JUDGMENT** ## **Ziyad Rahman A.A, J.** This writ petition is filed by the petitioner praying for issuance of a writ of habeas corpus directing the respondents to produce the detenu, who is his son, before this Court and to set him at liberty. The petitioner also seeks for quashing Ext.P1 order of detention passed by the 2[nd] respondent invoking the provisions contained in Kerala Anti-Social Activities (Prevention) Act, 2007 (for short ‘KAA(P)A’). The case of the petitioner is that, his son is involved in six criminal cases and on account of the same, on the basis of the proposal made by the 3[rd] respondent, an order of detention was passed by the 2[nd] respondent declaring the detenu to be a known rowdy and detained him by invoking Section 3 of KAA(P)A. The details of the cases are as follows: W.P.(Crl.).No.174 of 2021 3 |**Sl.**<br>**No.**|**Police Station**|**Crime No.**|**Date and**<br>**Time**|**Offences**|**Stage**| |---|---|---|---|---|---| |1.|Kayamkulam PS|Crime<br>No.2174820<br>16|07/08/2016<br>6.30 PM|IPC 341,<br>323, 324,<br>506(ii), 34<br>& Section<br>5(a) r/w 27<br>of Arms<br>Act|Charge<br>Sheet<br>submitted<br>on 1/10/16,<br>Pending as<br>CC<br>1735/2016<br>Trial.| |2.|Kayamkulam PS|2185/2016|07/08/2016|IPC 308,<br>34 &<br>Section<br>5(a) r/w 27<br>of Arms<br>Act|Charge<br>Sheet<br>submitted<br>as CC<br>No.112/201<br>8 Trial| |3.|Kayamkulam Police<br>Station|FIR<br>2787/2018|31/10/2018|IPC 143,<br>147, 148,<br>149, 323,<br>324, 326,<br>212, 202 &<br>27(1), 5(1)<br>of Arms<br>Act|Charge<br>Sheet<br>submitted<br>on<br>17/3/2019<br>Pending<br>trial CC<br>531/2019| |4.|Mannar Police<br>Station|FIR<br>982/2020|01/07/2020|IPC 294(b),<br>323, 341,<br>34|Charge<br>sheet<br>submitted<br>on<br>10/7/2020<br>Pending<br>Trial| |5.|Kayamkulam Police<br>Station|1385/2020|18/8/2020|IPC 294(b),<br>302, 324,<br>202, 201,<br>325, 34|Charge<br>sheet<br>submitted<br>on<br>3/11/2020<br>Pending<br>Trial| |6.|Kayamkulam PS|1386/2020|18/8/2020|IPC 143,<br>147, 148,<br>341,<br>294(b),<br>307, 323,<br>324, 326,<br>201, 202,<br>212, r/w<br>149|Charge<br>Sheet<br>submitted<br>16/11/2020<br>Pending<br>Trial| W.P.(Crl.).No.174 of 2021 4 2. The representation dated 20.01.2021 submitted before the Advisory Board, was forwarded by them to the 1[st] respondent along with their report on 16.02.2021. Later, as per Ext.P10 order, Ext.P1 order of detention was confirmed by the Government. Taking into account the fact that the detenu was detained under the provisions of KAA(P)A on earlier occasions, the period of detention fixed by the Government was one year. This writ petition is filed in the above circumstances. 3. A detailed counter affidavit has been filed on behalf of the 1[st] respondent wherein the averments contained in the writ petition were specifically denied. As per the contents of the counter affidavit, the calendar of events with regard to the preventive detention of the petitioner is as follows: “ a) Date of Order of detention : 24.11.2020 b) Execution of the Order of detention : 25.12.2020 c) Submission of proposal to Government : 30.12.2020 d) Date of Order of Approval by Government : 07.01.2021 e) Date of reference by the Government to the Advisory Board : 12.01.2021 h) Date of Commission of last offence (Last prejudicial activity) : 18.08.2020 W.P.(Crl.).No.174 of 2021 5 i) Period between the last prejudicial activity and the date of Order of the detention: 3 months & 7 days (18.08.202025.12.2020) j) Period between the date of the order of detention and its execution : 1 Month and 2 days (24.11.202025.12.2020)” 4. Heard Sri.C.Rajendran, learned counsel for the petitioner and Sri.K.A.Anas, learned Senior Government Pleader for the respondents. 5. Even though several contentions have been raised in the writ petition, the learned counsel for the petitioner mainly highlighted following contentions: There was no proper application of mind by the detaining authority while issuing Ext.P1 order. While passing Ext.P1 order of detention, the detenu was already under judicial detention consequent to his arrest in respect of Crime Nos.1385/2020 and 1386/2020 of Kayamkulam Police Station. As no application for bail was pending at the relevant time, there was no room for any apprehension as to his release from the judicial custody and hence there was no necessity for passing an order of detention under KAA(P)A. He further pointed out that on W.P.(Crl.).No.174 of 2021 6 earlier occasions also, the detenu was subjected to detention under KAA(P)A and the last detention order was quashed by this Court as per Ext.P11 judgment dated 07.01.2020 in W.P. (Crl.).No.351/2019. The cases considered for passing the order of detention which was set aside by this Court in Ext.P11 judgment were again considered for the purpose of the present order of detention as well. Out of the total six cases considered, Crime Nos.2174/2016, 2185/2016 and 2787/2018 of Kayamkulam Police Station were already considered for the earlier order of detention, and hence it was not proper on the part of the detaining authority to consider the said cases again. The above procedure is clearly in violation of the scheme of the enactment and especially Section 13. Section 13 permits reckoning of the crimes considered in the earlier order only when the earlier order is revoked by the Government. There was a delay of one month and two days between the date of order of detention and its execution, as the order of detention was dated 24.11.2020, whereas the same was executed only on 25.12.2020. The learned counsel points out that at the time of passing the order of detention and also at the time of execution thereof, W.P.(Crl.).No.174 of 2021 7 the detenu was under judicial custody consequent to his arrest in a crime and there was no valid ground for keeping the order of detention un-executed for a period of one month. This caused serious prejudice to him, contends the learned counsel for the petitioner. There was a delay of three months and seven days between the last prejudicial activity and the date of order of detention. The last prejudicial activity was on 18.08.2020, which is the subject matter of Crime Nos.1385/2020 and 1386/2020 of Kayamkulam Police Station, whereas the date of order of detention is on 24.11.2020. According to him, the live-link between the last prejudicial activity and order of detention is severed and hence the entire proceedings are vitiated. 6. Per contra, the learned Senior Government Pleader would contend that the contentions raised by the petitioner are not legally sustainable. By placing reliance upon the judgment reported in **Radhika B. V. State of Kerala and Others [2012(2) KHC 183]** , it was contended that the revocation of an order of detention does not take away the prior prejudicial act of the detenu that were counted for prior detention being counted again. With regard to the delay in W.P.(Crl.).No.174 of 2021 8 execution of the order of detention, it was contended that the same was due to the procedural delay occurred in obtaining permission to record the arrest of the detenu from the jurisdictional Court as the detenu was under judicial custody consequent to his arrest in a crime. With regard to the delay of three months and seven days in between the last prejudicial activity and the order of detention, it was contended that there is clear explanation for the delay in the order as well as in counter affidavit. There is no merit in the contention put forward by the learned counsel with regard to the lack of application of mind of the detaining authority as to the necessity of passing an order of detention. In such circumstances, he seeks for dismissal of the writ petition. 7. The first contention of the petitioner is that, there was no proper application of mind by the detaining authority as regards to the necessity of passing the order of detention, since the detenu was already under judicial detention while Ext.P1 order was passed. It is to be noted that, the detenu was arrested in connection with Crime Nos.1385/2020 and 1386/2020 of Kayamkulam Police Station on 20.08.2020 and since then he was under judicial custody. On 06.11.2020, a W.P.(Crl.).No.174 of 2021 9 report was submitted by the 3[rd] respondent, Superintendent of Police highlighting the necessity to pass an order of detention against the petitioner. On 16.11.2020 police submitted the final report in the aforesaid case and this matter was intimated to the detaining authority by way of another report and consequently the order was passed on 24.11.2020. In paragraph No.22 of Ext.P1 order, it is specifically observed that, as per the report submitted by the 3[rd] respondent, it was highlighted that if the detenu is released on bail he is likely to indulge in serious offences and would cause serious threat to the local people. It was also pointed out that, after the judgment passed by this Court in W.P.(Crl.).No.351/2020, he was involved in three cases of serious offences including murder of a person. In such circumstances, it was specifically pointed out that if the initiation of proceedings for detention is delayed till the detenu is released on bail, it is highly probable that the detenu would commit further criminal acts of serious nature, if released on bail. This explanation was considered by the detaining authority and arrived at a subjective satisfaction that in order to prevent the detenu from committing any W.P.(Crl.).No.174 of 2021 10 further crime, it should be ensured that he is kept under detention, considering the possibility of his release on bail. We notice that, detenu was already involved in several cases and this is the 7[th] order of detention passed against him. Among the six earlier detention orders, three orders were revoked on the recommendations of the Advisory Board, two orders were confirmed by the Government and one order which was confirmed by the Government was quashed by this Court as per Ext.P11 judgment, on procedural irregularity of rejection of representation made by the detenu while the detention order was pending consideration before the Advisory Board. Considering the repeated criminal acts of the detenu, despite the repeated orders of detention, we have no reason to conclude that the decision taken by the detaining authority in this regard is unsustainable. The apprehension expressed by the Sponsoring Authority, in the light of the facts and circumstances of the case, that the detenu was likely to indulge in criminal acts if he is set at liberty is a valid ground justifying initiation of proceedings for passing an order of detention even while the detenu was under judicial custody in connection with another crime. W.P.(Crl.).No.174 of 2021 11 8. Next contention is relating to the sustainability of considering the same offences which were already taken into account by the detaining authority for passing the earlier detention orders. It is true that three out of the six cases based on which Ext.P1 order was passed, were already considered by the detaining authority for passing earlier detention orders. It is also true that the aforesaid detention order was quashed by this Court as per Ext.P11 judgment. Section 13 of the KAA(P)A specifically provides that revocation or expiry of the detention order shall not be a bar for issuance of another detention order under Section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in Section 2(o) or Section 2(p). 9. In **Radhika B.** (supra) the Full Bench of this Court considered the above question and observed as follows: “11.What emerges from the aforesaid discussions is that once an order of detention is revoked either as a measure of obligatory revocation referable to Section 10(4) of the Act or by recourse to revocation under Section 13(1), the resultant revocation is, qualitatively, of no distinction among themselves as regards their impact on the W.P.(Crl.).No.174 of 2021 12 prejudicial activities counted for the purpose of the earlier detention order. This means that notwithstanding whether it is an obligatory revocation under Section 10(4) or a voluntary revocation under Section 13(1), the prejudicial activities which were reckoned for the purpose of an earlier detention order can nevertheless be counted, providing the live-link to issue another order of detention against the same person in the light of Sub-section 2 of Section 13; which provision is only to the effect that the revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under Section 3. Therefore, the power to issue the detention order is always under Section 3 and all that sub-section 2 of Section 13 does is to enumerate the situations where another detention order under Section 3 can be issued against the same person who was covered by an earlier detention order.” 10. In the said judgment it has been categorically observed that there is no prohibition in considering the previous offences, which were the subject matter of earlier detention orders once again, for subsequent detention order. In the light of the principles laid down in the said judgment, nothing precludes the authorities concerned, to rely upon the W.P.(Crl.).No.174 of 2021 13 crimes which were subject matter of the earlier detention orders. 11. The learned counsel for the petitioner attempted to draw a distinction in this regard by pointing out that, Section 13 permits the authorities concerned to issue subsequent detention orders, only in respect of cases where the revocation was by the Government or upon expiry of the period of detention, whereas, in this case, the earlier detention has been quashed by this court in a writ petition, which is a completely different scenario. We are not inclined to accept the said contention. While sub-section (1) of Section 13 empowers the Government to revoke or modify the detention order, at any time; sub-section (2) does not qualify or restrict the revocation as one made by the Government alone. We also notice the words employed in sub-section (1) which are 'revoked or modified' while in sub-section (2) they are 'revocation or expiry' which again supports the interpretation given by us. The power under the two subsections are quite different and distinct, a revocation made or expiry of the detention order as per sub-section (2) would not, hence, be a bar for issuance of another detention order if he W.P.(Crl.).No.174 of 2021 14 continues to be a person falling under the definition of known rowdy or known goonda irrespective of how or by whom the revocation was made. Clause (ii) of sub-section (2) of Section 13 also enables the detaining authority to reckon the previously known facts along with those which came to its notice after the earlier detention order, in making another detention order, after the earlier one is revoked or has expired. Further support for this position can be garnered from clause (iii) of sub-section (2). Clause (iii) enables rectification of procedural errors or omissions in the subsequent order, which can be based on the very same facts as available in the earlier order which has been revoked or has expired. We hasten to add that if any crime or crimes which have been found to be impossible of being reckoned, to term the detenu a known rowdy or known goonda, cannot definitely be reckoned again. But any procedural error or omission could be rectified in the subsequent order if the earlier one is revoked for such procedural error or omission; irrespective of at whose instance the revocation was made. This according to us is the scheme of KAAPA and Section 13 W.P.(Crl.).No.174 of 2021 15 and it is not as the learned Counsel for the petitioner would have us interpret it. 12. Another contention of the learned counsel is regarding the delay of one month and two days in executing the order of detention. It is true that when the order of detention was passed on 24.11.2020, he was in judicial custody in connection with Crime Nos.1385/2020 and 1386/2020 of Kayamkulam Police Station. As the detenu was already under judicial custody, it was necessary for the authorities concerned to obtain permission from the jurisdictional Magistrate for recording the arrest of the detenu in pursuance to the order of detention. Accordingly, they approached the jurisdictional Magistrate for the same, but by that time, the committal proceedings were already completed by the learned Magistrate and the same was forwarded to the Sessions Court for further proceedings. Thereafter, they approached the Additional Sessions Court-III, Mavelikkara by submitting Crl.M.P.No.825/2020, which was filed on 14.12.2020. The said application was considered by the learned Sessions Judge, who passed an order dated 22.12.2020, granting permission to record the arrest of the W.P.(Crl.).No.174 of 2021 16 detenu in pursuance to Ext.P1. On the basis of the said order, the detenu was arrested on 25.12.2020. When we consider this aspect, it is evident that there is no lapse on the part of the respondents in getting Ext.P1 order executed and the delay is not substantial, warranting interference as well. In such circumstances, we do not find any merit in the contention raised by the counsel for the detenu as to the delay in execution of the order of detention. 13. It is also contended that the live-link between the last prejudicial activity and the order of detention stood severed, as the order of detention was passed after a period of three months and seven days. The aforesaid aspect was considered by the detaining authority in paragraph No.35 of Ext.P1 order. It is stated therein that the proposal of the 3[rd] respondent was placed before the District Magistrate along with all the records on 11.11.2020. By that time, there was delay of two months and 25 days. The explanation offered by the 3[rd] respondent is that, at the relevant time, the office of the District Police Chief and the entire machinery of police were engaged in implementation of restrictions and other measures owing to Covid-19 pandemic. It was also pointed W.P.(Crl.).No.174 of 2021 17 out that 30 officers including the responsible officers in the concerned police station were affected with Covid-19 and were forced to undergo quarantine. The spread of Covid-19 was at its peak in Alapuzha District at the relevant time. This explanation was specifically considered by the 2[nd] respondent and found that delay has been properly explained. In **Kumaran v. District Collector and District Magistrate, Kozhikode and Others [2015(4) KLT 911]** a Division Bench of this Court categorically observed that if there is a valid explanation for the delay occurred, it can be accepted. In this case, we find that the reasons stated by the authorities cannot be simply ignored. The situation on account of Covid19 was extra ordinary and hence a different yardstick is to be applied in relation to the matters pertaining to the same. In this regard, it is also relevant to note that the detenu is a person involved in several cases. On six occasions, similar orders of detention were passed against him, which is a clear indication of his criminal instinct and it clearly conveys the necessity for invoking the provisions of KAA(P)A against the petitioner. The learned Senior Government Pleader also voiced an apprehension, by specifically referring to the past W.P.(Crl.).No.174 of 2021 18 conduct of the detenu that, if the detenu is released, he is likely to interfere with the cases in which trial is going on. He is likely to threaten and otherwise influence the witnesses. It is also discernible that immediately after he was released from detention consequent to Ext.P11 judgment passed by this Court, he was involved in three other offences including a case of murder. In such circumstances, there is no justification in interfering with the subjective satisfaction expressed by the 2[nd] respondent as to the necessity of detention and we do not think the live link between the detention and the last prejudicial activity can be said to have been broken even after the expiry of 3 months and 7 days; especially considering the extraordinary situation caused by the pandemic. On an examination of the materials before us, we are satisfied that, all the statutory formalities have been complied with by the authorities concerned, while passing Ext P1 order. Though many earlier detention orders were revoked by the Government, three on recommendation of the Advisory Board and one, by order of this Court; there was still more than one detention order in the past. The representation submitted by W.P.(Crl.).No.174 of 2021 19 the petitioner has been considered and Ext P10 order was passed by the Government confirming the detention for a period of one year. As the detenu is a person who was subjected to the order of detention on six occasions, out of which, two detention orders were approved by the 1[st] respondent, the order fixing the period of detention as one year, is proper. In such circumstances, we do not find any merit in the writ petition and accordingly the same is dismissed. Sd/- **(K.VINOD CHANDRAN, JUDGE)** Sd/- **(ZIYAD RAHMAN.A.A, JUDGE)** DG/12.10.21