Ananthu Prasannan v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & THEHONOURABLEMR.JUSTICEG.GIRISH THURSDAY,THE1[ST]DAYOFAUGUST2024/10THSRAVANA,1946 WP(CRL.)NO.648OF2024 ``` ``` PETITIONER: ``` ## **`ANANTHU PRASANNAN`** ``` AGED29YEARS ``` ``` S/OPRASANNAN,ATHIRABHAVANHOUSE,POOVANTHURUTHBHAGAM, POOVANTHURUTHKARA,PANACHIKKADVILLAGE,KOTTAYAMDISTRICT, PIN-686012. ``` ## **`BY ADV AJEESH M UMMER`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031.`** - **`2 THE DEPUTY INSPECTOR GENERAL OF POLICE ERNAKULAM RANGE, ERNAKULAM, PIN - 682031.`** - **`3 DISTRICT POLICE CHIEF KOTTAYAM COLLECTORATE, KOTTAYAM, PIN - 683101.`** - **`4 STATION HOUSE OFFICER KOTTAYAM EAST POLICE STATION ,KOTTAYAM., PIN - 686002.`** - **`5 THE SECRETARY`** - **`ADVISORY BOARD, KAA(P)A, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA., PIN - 682026.`** ``` BYADV. ``` - **`K.A ANAZ, PP`** ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFORADMISSIONON 01.08.2024,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` ``` WP(CRL.)NO.648OF2024 ``` ``` 2 ``` ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** This writ petition is instituted challenging Ext.P1 order issued under Section 15(1)(a) of the Kerala Anti Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity) by the 2nd respondent interdicting the movement and entry of the petitioner into the limits of Kottayam District for a period of nine months. The petitioner has also challenged Ext.P4 order issued by the Advisory Board while disposing of the representation submitted by him. The Advisory Board has reduced the period of externment to seven months subject to certain conditions. 2. In the writ petition, the petitioner asserts that in order to initiate proceedings against him, he has been classified as a ‘known goonda’ as defined under Section 2(o)(iii) of the KAAPA. According to him, all the seven cases registered against him are frivolous and he has been falsely implicated. It is contended that the petitioner, being aggrieved by the persistent harassment by the police, had approached this Court and filed W.P.(C) No. 20961/2022 and by Ext.P5 judgment, this Court had directed the police authorities not to harass him without giving notice as stipulated under law. According to the petitioner, proceedings under Section 107 have been initiated against him and he has executed a bond and the same ought to have been treated as sufficient deterrent. He would further state that ``` WP(CRL.)NO.648OF2024 ``` ``` 3 ``` there is a long, inordinate, and unexplained delay from the last prejudicial act and Ext.P1 order, and in that view of the matter, it cannot be said that there is any immediate need to curtail the movements of the petitioner. 3. Sri. Ajeesh M Ummer, the learned counsel appearing for the petitioner would invite the attention of this Court to the various crimes referred to by the authorities to classify him as a known goonda. It is submitted that Crime No. 2751 of 2018 and Crime No. 90 of 2024 involve only minor offences and those cases cannot be regarded as acts that would be prejudicial to the maintenance of public order. He would point out that in all the cases, the petitioner has been falsely implicated by the police. He would point out that the last crime was registered on 15.1.2024, but the impugned order was passed only on 24.4.2024. According to the learned counsel, the long delay that has occurred in passing the order has not been properly explained. Relying on the law laid down by this Court in **Asker Ali v. State of Kerala[1]** , it is pointed out that in the said case, this Court had held that even a delay of five weeks on the part of the sponsoring authority which is unexplained would destroy the live link between the last prejudicial activity and thereby the purposes of the externment order would get snapped. The learned counsel has also referred to the judgment of a Division Bench of this Court in W.P.(Crl) No.313 of 2023 and it is urged that the failure on the part of the respondents in properly explaining the delay in > 1 [2022 KHC 998] ``` WP(CRL.)NO.648OF2024 ``` ``` 4 ``` passing the externment order would vitiate the order. The learned counsel would also submit that insofar as Crime Nos.3028/2023 and 4094/2023 which are registered under the NDPS Act are concerned, the specific case of the petitioner was that he was falsely implicated for which complaints have been lodged before the higher authorities. It is further submitted that in all the seven cases in which the detenu has been involved, the final report has already been laid and in that view of the matter, the justification offered by the authorities in the order of detention that some time was required for collating the documents cannot be sustained. 4. In response, it is submitted by the learned Public Prosecutor that the contentions raised by the petitioner are meritless. He would point out that the initial proposal was submitted by the Station House Officer on 8.3.2024. Based on the aforesaid report, a proposal dated 25.3.2024 was forwarded by the Superintendent of Police. Immediately thereafter, a show cause notice was issued to the detenu on 2.4.2024 which was accepted on 12.4.2024. The detenu was asked to furnish his response on or before 19.4.2024. In response, a reply was given by the detenu on 19.4.2024. A notice was also issued to the detenu on 17.4.2024 to appear for a personal hearing on 22.4.2024. On the said day, the detenu appeared and furnished his explanation. It is in pursuance to the same that the impugned order was passed under Section 15(2) of the Act on 24.4.2024 restricting the movements of the detenu and the order was served on him on 25.4.2024. ``` WP(CRL.)NO.648OF2024 ``` ``` 5 ``` In terms of Section 15(2) of the Act, the detenu submitted a representation to the Advisory Board. The Advisory Board by Ext.P4 order interfered with the order of externment and reduced the period to seven months. It is submitted that there is no undue delay in passing the order and for the minimal delay, proper explanation has been submitted. It is further submitted that the assertion that the petitioner was falsely implicated in all the cases cannot be sustained. 5. We have examined the arguments advanced before us and have gone through the records. The details of the crimes in which the petitioner got himself involved are as under: |**Sl.**<br>**No.**|**Crime No.**|**Police**<br>**Station**|**Offences**<br>**involved Under**<br>**Sections**|**Date of**<br>**Occurrence**|**Final**<br>**Report u/s**<br>**173 Cr.p.c**|**Present**<br>**status of the**<br>**case**| |---|---|---|---|---|---|---| |1|2751/2018|Chingavanam|U/s 323, 324, 34<br>IPC|30.12.2018|5.1.2019|pending trial| |2|2129/2021|Kottayam East|U/s 511, 436, 427,<br>34 IPC|4.9.2021|10.6.2022|-do-| |3|2491/2022|Chingavanam|U/s 294(b), 323<br>,324, 308, 506(i),<br>212, 34 IPC|8.12.2022|28.1.2023|-do-| |4|2511/2022|Chingavanam|U/s330, 342, 348,<br>363, 365, 294(b),<br>506(i), 34 IPC|9.10.2022|17.4.2022|-do-| |5|1328/2023|Vaikom|U/s 20(b)(ii)(A)<br>22(a)25,29 of NDPS<br>Act|6.8.2023|25.8.2023|-do-| |6|1494/2023|Gandhinagar|U/s20(b)(ii)(B) 25,<br>29 of NDPS Act|25.9.2023|18.12.2023|-do-| |7|90/2024|Ettumanoor|U/s 294(b), 341,<br>506, 34 IPC|12.1.2024|20.2.2024|-do-| ``` WP(CRL.)NO.648OF2024 ``` ``` 6 ``` 6. We find that the petitioner has been classified as a ‘known goonda’ on account of his involvement in seven crimes. It appears that the final report has been laid in almost all cases. In that view of the matter, the objective satisfaction arrived at by the authority to classify the petitioner as a ‘known goonda’ is clearly based on the qualification acquired by the petitioner on account of his involvement in anti-social activities. It would not be possible for the authority or for the court to ascertain at this stage as to whether the petitioner is innocent of all crimes or whether the cases have been falsely instituted. As to whether the cases registered against the petitioner will end in acquittal based on the evaluation of the materials is an exercise that cannot be carried out by the authority while passing the order. As held by this Court in **Binoy v State of Kerala[2] ,** the initiation of proceedings under Section 15 is an anticipatory action to prevent apprehended objectionable activities and conduct injurious to the society. The object is not to punish a person after evaluating legal evidence, but it is only a precautionary measure for the protection of society by the authority concerned. The objective satisfaction arrived at by the authority cannot therefore be faulted. 7. The next contention of the petitioner is that there is a long and inordinate delay between the last prejudicial act and the order of externment. In **Stalin C.V. v. State of Kerala and Ors.[3]** , a Division > 2 2018 (1) KHC 348 > 3 [ 2011 (1) KHC 852] ``` WP(CRL.)NO.648OF2024 ``` ``` 7 ``` Bench of this Court had occasion to consider the delay on the part of the competent authority in initiating proceedings under Section 15 of the Act and its impact on the live link required for the purpose of initiating action. This Court, while comparing the provisions under Section 3 which enables the authority to pass an order of detention, and Section 15 which deals with externment held that the order under Section 15 of the Act though visits the person with deprivation of liberty, is of a lesser magnitude when compared to Section 3 of the Act. It was observed that before passing an order of restriction under Section 15, it is mandatory for the authority concerned to observe the principles of natural justice. The officer is required to issue a show cause notice and afford an opportunity of being heard to the person against whom the order is proposed to be issued. This obviously would consume time. It was held that Section 15, apart from allowing the officer to delve into the past, permits him to hypothesize about what the ‘known goonda’ or the ‘known rowdy’ is likely to do in the immediate future, having regard to the words ‘about to indulge’. This Court also observed that an order of restriction cannot be passed under Section 15 of the Act if the act/acts which are complained of have completely lost their relevance by the passage of time, giving rise to a total absence of any nexus. However, an order of restriction under Section 15 is lighter in its impact on the personal liberty of the person concerned and its effect is only in the nature of a condition attached to a bail order. In the case on hand, the last prejudicial ``` WP(CRL.)NO.648OF2024 ``` ``` 8 ``` activity was on 12.1.2024 and the externment order was passed on 24.4.2024 after providing an opportunity to the petitioner to furnish his explanation and after granting him an opportunity for personal hearing. We also find that in the order, the authority has clearly mentioned the reasons for the delay and has reiterated that there exists a live link with the last prejudicial act. In the facts and circumstances, we cannot agree with the learned counsel that the live link between the last prejudicial act and the order of restriction has got snapped owing to the delay as projected in the petition. 8. On a perusal of the order, we find that the authority has recorded its subjective satisfaction for the imposition of the restriction order. It is well settled that subjective satisfaction entertained by the authority is not justiciable. This Court does not sit in appeal in proceedings under Article 226 of the Constitution of India over the decisions taken by the authority on the basis of the materials placed before the authority for initiation of proceedings. The short area of jurisdiction is to ascertain whether subjective satisfaction is entertained properly on the basis of materials placed before the authority. If the entertainment of the latter subjective satisfaction is vitiated by mala fides or by the total absence of materials or by reference to and reliance on materials which cannot legally be taken note of, certainly the powers of judicial review vested in this Court can be invoked and the order of detention on the basis of such alleged subjective satisfaction can be set ``` WP(CRL.)NO.648OF2024 ``` ``` 9 ``` aside. But, certainly, if there are materials, it is not open to this Court to sit in appeal over the subjective satisfaction entertained by the authority. (See: **Ibrahim Bachu Bafan and Another v. State of Gujarat and Another**[4] ). 9. We have also perused the order dated 24.04.2024. The authority has documented all crimes, the initiation of 107 proceedings against the petitioner, involvement in crimes in spite of stringent bail conditions, and the reasons which persuaded the authority to exercise the power conferred under the Statute. We do not think that the subjective satisfaction is vitiated by mala fides or by the total absence of materials or by reference to and reliance on materials that cannot legally be taken note of. Based on the externee's past and current conduct and the available materials, the authority concluded that an order under Section 15(1) of the KAAPA was necessary to prevent the petitioner from engaging in anti-social activities as defined by the Act. The Advisory Board, after thoroughly re-considering the matter, has reduced the period of externment while imposing appropriate conditions. ## 10. In **Benoy @ Gillappi v. State of Kerala and Ors[5] .,** this Court had held as follows in paragraph No. 17 of the judgment: > 5 [2018 (1) KHC 348] > 4 [1985 (2) SCC 24)] ``` WP(CRL.)NO.648OF2024 ``` ``` 10 ``` KAAPA is enacted to prevent as well to have effective control over anti-social activities of persons indulged in such activities, to protect the community or the public at large free from threat or danger by the unruly behavior of such persons. The order was passed to avoid the presence of the petitioner at a place he is having acquaintance and the imperative need to restrict his movement in the area for the welfare of the society at large is abundantly clear from the records and that such a decision was taken by the authority based on the antecedents or past conducts of the petitioner in the wake of the surrounding circumstances. As the prime intention of the Act is to prevent or control - anti social activities by such persons who fall within the sweep of 'Known goonda' or 'Known rowdy', for the safety of the public, the authority is vested with power to take tough and stringent decisions giving utmost importance to the welfare of society than the private right of an individual, restricting his free movements in particular and specified areas to intercept him before he commits further unlawful acts as an anticipatory measure. 11. We are of the view that the petitioner has not made out any case for interference. ## This Writ Petition is dismissed. ``` Sd/- ``` **RAJA VIJAYARAGHAVAN V JUDGE** ``` Sd/- ``` **G.GIRISH JUDGE** ``` sru ``` ``` WP(CRL.)NO.648OF2024 ``` ``` 11 ``` ## **`APPENDIX OF WP(CRL.) 648/2024`** ## **`PETITIONER’S EXHIBITS`** |**`Exhibit `**|**`P1`**|**`A TRUE COPY OF THE ORDER NO. KAAPA-6022/2024/ER`**| |---|---|---| |||**`DATED 24.04.2024.`**| |**`Exhibit `**|**`P2`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`PROPOSAL`**<br>**`WITH`**<br>**`DOCUMENTS`**| |||**`ATTACHED TO IT DATED 25.03.2024.`**| |**`Exhibit `**|**`P3`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`REPLY`**<br>**`GIVEN`**<br>**`BY`**<br>**`THE`**| |||**`PETITIONER HEREIN DATED 18.04.2024.`**| |**`Exhibit `**|**`P4`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`ORDER`**<br>**`ISSUED`**<br>**`BY`**<br>**`ADVISORY`**| |||**`BOARD,`**<br>**`KERALA`**<br>**`ANTISOCIAL`**<br>**`ACTIVITIES`**| |||**`(PREVENTION) ACT DATED 07.06.2024.`**| |**`Exhibit `**|**`P5`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`JUDGMENT`**<br>**`IN`**<br>**`W.P.`**<br>**`(C)`**<br>**`NO.`**| |||**`20961/2022`**<br>**`DATED`**<br>**`25.07.2022`**<br>**`BY THIS HONOURABLE`**| |||**`COURT.`**| |**`Exhibit `**|**`P6`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`PETITION`**<br>**`AND`**<br>**`THE`**<br>**`RECEIPT`**| |||**`GIVEN BY THE OFFICE OF DISTRICT POLICE CHIEF BY`**| |||**`RECEIVING THE PETITION DATED 17.08.2023.`**| |**`Exhibit `**|**`P7`**|**`A TRUE COPY OF THE FIR OF THE CRIME NO. 86/2024`**| |||**`ETTUMANOOR POLICE STATION DATED 14.01.2024.`**| |**`Exhibit `**|**`P8`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`THE`**<br>**`MEDICAL`**<br>**`DOCUMENT`**<br>**`DATED`**| |||**`03.04.2024.`**|