Anju P. Anilkumar v. State of Kerala and Others

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` # `PRESENT` ``` THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` TUESDAY, THE 28TH DAY OF MARCH 2023 / 7TH CHAITHRA, 1945 ``` ## `WP(CRL.) NO. 688 OF 2022` ``` CRIME NO.317/2022 OF CHERPU POLICE STATION, THRISSUR ``` ## `PETITIONER/S:` ``` ANJU P.ANILKUMAR AGED 24 YEARS W/O ACHU SANTHOSH, PUTHEN THARAYIL HOUSE, ATHIRANPUZHA P.O, NALPATHIMALA, KOTTAYAM, PIN - 686562 BY ADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMI SHANKAR NANCY MOL P. ANANDHU P.C. KRISHNA T.B. ``` ## `RESPONDENT/S:` ``` 1STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE KOTTAYAM, PIN - 686002 3THE DISTRICT POLICE CHIEF KOTTAYAM, PIN - 686002 4THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026 5THE SUPERINTENDENT OF JAIL CENTRAL JAIL, VIYYUR, PIN - 680001 ``` ``` BY SRI. K.A.ANAS-GP ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10.03.2023, THE COURT ON 28.03.2023 DELIVERED THE FOLLOWING: ``` ## CR ## ALEXANDER THOMAS & ZIYAD RAHMAN A.A., JJ. ======================================== W.P.(CRL.) No. 688 of 2022 ======================================= Dated this the 28[th] day of March, 2023 ## JUDGMENT ## ZIYAD RAHMAN A.A., J. The petitioner herein is the wife of the detenue, Sri.Achu Santhosh, aged 31 years. He is now under preventive detention as the Exhibit P1 order issued the 2[nd] per by respondent/District Magistrate, under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ‘KAA(P)A’). The 2nd respondent issued the aforesaid order on 30.06.2022 directing the detention of the petitioner by treating him as a ‘Known Rowdy’ as defined under section 2(p) read with section 2(t) of the KAA(P)A. Based on the aforesaid order, the detenue was arrested on 17.07.2022. This Writ Petition is submitted in such circumstances challenging Ext.P1 order and for issuing a Writ of Habeas Corpus commanding the respondents to produce the body of the detenue Sri. Achu Santhosh, and to set him at liberty. 2. Heard Sri. M.H. Hanis, the learned counsel for the WP(Crl) No.688 of 2022 2 petitioner and Sri. K.A. Anas, the learned Public Prosecutor for the State. 3. The facts which led to the filing of this Writ Petition are as follows: Acting upon the report submitted by the 3[rd] respondent/District Police Chief, Kottayam, the 2[nd] respondent/District Magistrate, as per order bearing No.DCKTM/5978/2021/HI dated 30.06.2022, ordered the detention of the detenue under the provisions of KAA(P)A. The aforesaid detention was made taking note of the criminal record of the detenue which consists of 12 cases, the details of which are specifically described in paragraph 2 of the detention order dated 30.06.2022, in the manner as follows: ## “(i) **Crime No. 1217/2015, Ettumanoor Police Station** ## (Sections 294(b), 323, 324, 34 IPC) |(Sections 294(b),323,324,34 IPC)|| |---|---| |Date of commission of the offence|14.09.2015| |Final report submitted on|07.10.2015| |Court|Judicial First Class Magistrate Court,<br>Ettumanoor| |Case Number|CC 1739/15| |Complainant|Rahul Raj| |Position of the Accused|1stAccused| ## **(ii) Crime No. 143/2017, Ettumanoor Police Station** (Section 324 I.P.C.) |**(ii) Crime No. 143/2017, Ettumanoor Police**<br>(Section 324 I.P.C.)|**Station**| |---|---| |Date of commission of the offence|20.01.2017| |Final report submitted on|28.02.2017| |Court|Judicial First Class Magistrate<br>Court,Ettumanoor.| |Case Number|CC 1282/17| |Complainant|Rahul K.A.| WP(Crl) No.688 of 2022 3 Position of the Accused Sole Accused ## **(iii) Crime No. 184/2017, Ettumanoor Police Station** (Sections 20(b) (II)A of NDPS Act) |**(iii) Crime No. 184/2017, Ettumanoor Police**<br>(Sections 20(b) (II)A of NDPS Act)|**Station**| |---|---| |Date of commission of the offence|31.01.2017| |Final report submitted on|05.02.2017| |Court|Judicial First Class Magistrate| ||Court,Pala.| |Case Number|CC 95/17| |Position of the Accused|1stAccused| ## **(iv) Crime No. 1908/2017, Ettumanoor Police Station** (Sections 294(b), 332, 506(i) IPC) |(Sections 294(b),332,506(i)IPC)|| |---|---| |Date of commission of the offence|01.11.2017| |Court|Judicial First Class Magistrate<br>Court,Ettumanoor| |Case Number|CC 348/18| |Complainant|Santhosh Kumar| |Position of the Accused|Sole Accused| ## **(v) Crime No. 2028/2017, Hillpalace Police Station** |Sections|307, 332, 34 IPC & 20(b) (II)B, 25 of<br>NDPS Act| |---|---| |Date of commission of the offence|29.11.2017| |Final report submitted on|21.07.2018| |Court|District & Sessions Court,Ernakulam| |Case Number|S.C No. 722/19| |Complainant|P.S. Shiju, Police Inspector, Hillpalace<br>Police Station| |Position of the Accused|2ndAccused| ## **(vi) Crime Number 1321/2018 Kuruvilangadu Police Station** (Sections 143, 144, 147, 148, 201, 225B, 294(b), 283, 323, 328, 332, 341, 395, 427, 506(ii), R/w 149 of IPC, Sections 27 & 12(b) of Arms Act, Section 177 r/w Sections 66(I) & 192(A) of Motor Vehicles Act) |66(I)& 192(A)of Motor Vehicles Act)|| |---|---| |Date of commission of the offence|26.11.2018| |Final report submitted on|18.09.2019| |Court|Additional District & Sessions Court,<br>Pala.| |Case Number|SC 195/20| |Complainant|Benny P.A., Excise Range Inspector,<br>Kuruvilangadu| |Position of the Accused|2ndAccused| ## **(vii) Crime Number 758/2020, Ettumanoor Police Station** (Sections 294(b), 324, 341, 326, 308, 34 IPC) |Date of commission of the offence|19.06.2020| |---|---| |Final report submitted on|04.08.2021| |Court|JFM Court,Ettumanoor| |Case Number|CP 29/20| |Complainant|Santhosh Kumar| |Position of the Accused|1stAccused| WP(Crl) No.688 of 2022 4 ## **(viii) Crime Number 1502/2020 of Ettumanoor Police Station** (Sections 43, 147, 149, 353 of IPC, Sections 3(I) R/w 2(b)(ii) of PDPP ACT) |Date of commission of the offence|24.12.2020| |---|---| |Court|JFM Court,Ettumanoor| |Case Number|CC 203/21| |Complainant|Manu V.Nair, Police Sub Inspector,<br>Ettumanoor.| |Position of the Accused|1stAccused| ## **(ix) Crime No. 1032/2021, Ettumanoor Police Station** (Sections 294(b), 307, 324, 332, 333 IPC ) |Date of commission of the offence|11.06.2021| |---|---| |Final report submitted on|28.09.2021| |Court|JFM Court,Ettumanoor| |Case Number|CP 39/21| |Complainant|Aneesh A.S., Senior Civil Police<br>Officer,Ettumanoor| |Position of the Accused|1stAccused| ## **(x) Crime No. 314/2022 of Cherppu Police Station** (Section 27 of the Arms Act 1959) |(Section 27 of the Arms Act 1959)|| |---|---| |Date of commission of the offence|19.04.2022| |Final report submitted on|26.05.2022| |Trial Court|JFM Court- 1,Thrissur| |Complainant|Jaison J., Police Sub Inspector,<br>Cherppu Police Station| |Position of the Accused|3rdAccused| ## **(xi) Crime No. 315/2022 of Cherppu Police Station** (Sections 307, 332, 353, 120(B), 34 IPC, Sec 20(B) ii (A) of NDPS Act & Sec 3 & 4 of PDPP Act) |(Sections 307, 332, 353, 120(B), 34 IPC, Sec<br>PDPP Act)|20(B) ii (A) of NDPS Act & Sec 3 & 4 of| |---|---| |Date of commission of the offence|19.04.2022| |Complainant|Jaison J, Police Sub Inspector,<br>Cherppu Police Station| |Trial Court|JFM Court-1,Thrissur| |Case Number|Under investigation| |Complainant|Jaison J., Police Sub Inspecto,<br>Cherppu Police Station| |Position of the Accused|8thAccused| ## **(xii) Crime No. 317/2022, Cherppu Police Station** (Sections 457, 461, 380, 34 IPC) |Date of commission of the offence|18.04.2022| |---|---| |Place of occurrence|പാറക<br>ോവിൽ| |Final report submitted on|31.05.2022| |Trial Court|JFM Court-1,Thrissur| |Complainant|Shibu T.V., Police Inspector, Cherppu<br>Police Station| |Position of the Accused|1stAccused| Initially, the petitioner was under preventive detention for six WP(Crl) No.688 of 2022 5 months from 28.02.2019, as per the order passed under the KAA(P)A dated 7.2.2019. The order above was passed by taking into account the initial five crimes referred to above, and he had completed the period of detention. After release from his first detention, he again got involved in three more cases viz. Crime Nos.758/2020, 150/2020 and 1032/2021, referred to above. Therefore, the 2[nd] detention order was issued on 1.9.2022, and in the execution of the same, the petitioner was arrested on 4.9.2021. However, as per the judgment passed by this Court in WP(Crl)No.474/2021 dated 6.4.2022, he was released before the completion of the detention period. The said detention order was set aside by this court on the ground that the order of detention was not forthwith communicated to the Government as provided under Section 3(3) of the KAA(P)A and also on the ground that the copies of the bail order in B.A.No.5855/2021 passed by this Court was not given to him. Subsequent to the aforesaid order, the petitioner got involved in four other cases. The last prejudicial activity was on 19.4.2022. The details of the statutory procedure followed after the issuance of the detention order is extracted in paragraph 5 of the counter affidavit filed by the 1[st] respondent, WP(Crl) No.688 of 2022 6 ## which is as follows: “5. The calendar of events with regard to the preventive detention of Sri. Achu Santhosh, S/o. Santhosh, is as follows: |Achu Santhosh, S/o. Santhosh, is as follows:|| |---|---| |a) Date of order of detention|30.06.2022| |b) Execution of the order of detention|17.07.2022| |c) Date of Order of Approval by Government|27.07.2022| |d) Date of reference by the Government to the Advisory<br>Board|<br>04.08.2022| |e) Report of the Advisory Board|15.09.2022| |f) Date of Order of Confirmation by Government|19.09.2022| |g) Date of commission of last offence (Last Prejudicial<br>Activity)|<br>19.04.2022| |h) Period between the last prejudicial activity and the date<br>of Order of the detention|<br>2 months and 11<br>days<br>(19.04.2022 –<br>30.06.2022)”| 4. The learned counsel appearing for the petitioner raised several contentions in support of the prayers sought in the Writ Petition. The first contention was concerning the delay in executing the detention order. According to him, even though the detention order was passed on 30.06.2022, the petitioner was arrested only on 17.07.2022. According to him, no effective measures were taken by the authorities concerned, to execute the detention order, and this by itself vitiates the entire proceedings pursuant to the detention order. The aforesaid contention was raised by the learned counsel for the petitioner, by relying upon the stipulations contained in Section 6 of the KAA(P)A, which contemplates that, in case, the Government or authorized officer has reason to believe that the person in respect of whom a WP(Crl) No.688 of 2022 7 detention order has been made has absconded or is concealing himself so that the order cannot be executed, the Government or such officer may make a report in writing of the fact to a Chief Judicial Magistrate or a Judicial Magistrate of the First Class having jurisdiction in the place where the said person ordinarily resides. The said provision further contemplates that on making a report against any person as mentioned above, the provisions of Sections 82,83,84,85 and 86 of the Code of Criminal Procedure shall apply in respect of such person and his property, as if the detention order made against him is a warrant issued by the Magistrate. Therefore, it was pointed out that, if the 2[nd] respondent was of the opinion that, the petitioner was absconding, the procedure as contemplated under section 6 of the KAA(P)A should have been initiated immediately, and since the said provision has not been invoked in this case, the entire proceedings pursuant to the detention order are vitiated. 5. On the other hand, the learned Public Prosecutor would oppose the aforesaid contention. According to him, the delay is only 17 days, and under no circumstances can the same be treated as an inordinate delay. The learned Public WP(Crl) No.688 of 2022 8 Prosecutor brought the attention of this Court to the averments made in the additional counter affidavit filed on 3.1.2023 by the Government in which paragraph 3 thereof, the steps taken by the authorities concerned to trace out the petitioner, have been clearly mentioned. The said explanation is extracted for easy reference. “Consequent to the issuance of the detention order on 30.06.2022, the Station House Officer, Ettumanoor made earnest attempt to apprehend the detenue. Since his whereabouts could not be found, action was decided to be initiated u/s. 6(1) (a), (b) of the KAA(P) Act to make a report in writing to the CJM/ Ist Class Judicial Magistrate concerned and to issue Gazette notification directing the detenue to appear before the Specified Officer within the specified period of time, In the mean time on 17.07.2022, the police received reliable confidential information that the detenue was in the vicinity of Ettumanoor and the police arrested the detenue on 17.07.2022 at 3 p.m. and detained him in the Central Prison, Viyyur with effect from 18.07.2022. The slight delay occurred in executing the detention order was well explained by the District Police Chief, Kottayam vide letter No. 150/TDR/SB/18/K dated 20.07.2022, addressed to the district Collector, Kottayam.” 6. It is true that, if there is an inordinate delay in the execution of the detention order, the proceedings are liable to be interfered with. In this regard, the learned counsel for the petitioner relies on the decision rendered by the Hon'ble Supreme Court in Sushantakumar Banik v. State of Tripura and Others [2022 SCC Online SC 1333] . However, the crucial aspect to be noticed is that the aforesaid decision dealt with a case in which there was an inordinate delay in passing the order of WP(Crl) No.688 of 2022 9 detention after the receipt of the report of the sponsoring authority. Indeed, certain decisions which dealt with the legal position regarding the consequences of the delay in the execution of detention orders were referred to in the said decision. But the factual circumstances on which the aforesaid judgment was rendered were different, and it was not a case of delay in execution of the detention order. On the other hand, in Licil Antony v. State of Kerala and Another [(2014)11 SCC 326] , the aforesaid question was explicitly considered. The said decision was rendered in respect of an order of preventive detention passed under the provisions of the COFEPOSA Act, and it was held that the delay of one month and five days in executing the order could not be treated as inordinate. It is to be noted that in the aforesaid decision, the specific contention raised on behalf of the detenue was that, had the detenue been absconding, the appropriate Government ought to have taken recourse to section 7 of the COFEPOSA Act, which confers a power on the detaining authority to make a report to a competent Magistrate in relation to an absconding person, to invoke the provisions of Sections 82,83,84 and 85 of the Code of Criminal Procedure. After WP(Crl) No.688 of 2022 10 referring to the stipulations contained in Section 7 of the COFEPOSA Act, it was concluded that the delay of one month and five days could not be treated as an inordinate delay in the facts of that case. Similarly, in Bhawarlal Ganeshmalji v. State of Tamil Nadu, (1979) 1 SCC 465, the delay of about four years was held to be not a reason warranting interference with the order of detention. It was observed in the said decision that "….but where the delay is not only adequately explained but is found to be the result of the recalcitrant or refractory conduct of the detenue in evading arrest, there is warrant to consider the “link” not snapped but strengthened.” 7. In this case, going by the explanation offered by the respondent in their counter affidavit as extracted above, it can be seen that the authorities concerned were taking prompt steps to trace out the petitioner herein. As the efforts taken by the Station House Officer, Ettumanoor, in this regard did not yield desired results, they have taken a decision to initiate the proceedings under section 6 of the KAA(P)A by making a report before the jurisdictional magistrate. However, on 17.7.2022, the police received reliable information that the detenue was in the vicinity WP(Crl) No.688 of 2022 11 of Ettumanoor, and immediately the police arrested the detenue on the same day, and thereby the detention order was executed. When considering all the said aspects, the delay of 17 days cannot be treated as inordinate. Moreover, the respondent offered a reasonable explanation in their counter affidavit, which appears to be satisfactory. 8. In such circumstances, in the light of the principles laid down by the Hon'ble Supreme Court in the above-referred decision and also in the light of the explanation given by the respondent in the counter affidavit as extracted above, we do not find any lapses on the part of the authorities concerned in executing the detention order so as to warrant any interference in the proceedings. Therefore, the contention raised by the petitioner in this regard is hereby rejected. 9. Another contention raised by the learned counsel for the petitioner is that even though the petitioner was served with copies of the documents relied on by the 2nd respondent to arrive at the objective and subjective satisfaction for initiating the proceedings for preventive detention, most of the copies so served upon him were not legible. According to him, this WP(Crl) No.688 of 2022 12 prevented him from invoking his right to make a proper representation before the authorities concerned, which is not only a statutory right as contemplated under Section 7(2) of the KAA(P)A but also a Constitutional right under Article 22 (5) of the Constitution of India. Since the said rights are violated, the order of preventive detention is liable to be interfered with, contends the learned counsel for the petitioner. 10. It is true that the non-supply of the documents which formed the basis of detention, or supply of illegible copies of the documents relied upon by the detaining authority, amounts to the violation of the rights of the detenue and this position is well settled as per various decisions rendered by the Hon'ble Supreme Court including the decision in the State of Manipur and Others v. Buyamayum Abdul Hanan alias Anand and Another [(2022)SCC OnLine SC 1455] . In this case, the petitioner has raised the said contention in paragraph 2 of the statement of facts of the memorandum of the writ petition and also in ground 'G' thereof. The aforesaid contention raised by the petitioner was specifically denied by the 2nd respondent in their counter affidavit in paragraphs 15 and 25. It is specifically averred that, WP(Crl) No.688 of 2022 13 after the execution of the detention order, the detenue was admitted to Central Prison, Thiruvananthapuram on 18.7.2022 and was later shifted to Viyyur Central Prison and then to Central Prison, Kannur. After the arrest of the detenue, the police officer read out the detention order and the grounds of detention to the detenue. After due comprehension, the detenue put his dated signature on all the pages of the detention order along with a statement that he had understood the detention order and clear copies were received. It is further averred that all legible copies of the documents relied on by the authorities concerned were served to the detenue within the prescribed time limit of five days from the execution of the detention order under Section 7 of the KAA(P)A. As an acknowledgement, he had put his dated signature on the entire pages of the documents with an endorsement that clear copies were received. 11. Exhibit P1 claims to be the copies of the documents which the detenue received from the respondents. The learned counsel for the petitioner pointed out that, from the said document, it can be seen that some parts of certain pages were not legible, and on some pages, the entire page itself was not WP(Crl) No.688 of 2022 14 readable at all. However, the endorsements made by the detenue in those copies (Ext P1) are that he had received clear copies of the said documents. While considering the contention, one of the crucial aspects to be noted is the contentions raised by the petitioner in the representation submitted in response to the detention order. Exhibits P2 and P3 are the representations submitted before the Government and the Advisory Board, respectively. We have carefully gone through the contents of the said document, and it is conspicuous to note that the contention that the detenue was not served with the legible copies of the aforesaid documents is not seen mentioned in the said representations. Apart from the above, a specific reply, with specific reference to the crimes based on which the detention order was passed, were made in the representations by highlighting that those cases cannot form the basis of the detention order. The contents of Exts.P2 and P3 representations can have two consequences as far as the contentions raised by the petitioner in this regard is concerned. First of all, if the copies received by the detenue were not legible, normally that would have been the first contention raised in the representation, as it is WP(Crl) No.688 of 2022 15 a crucial matter which prevents the detenue from exercising his right to submit a proper representation before the authorities concerned. Therefore, the absence of such a contention in the representation is very conspicuous and goes against the grounds raised by the petitioner in this regard in the Writ Petition. 12. Secondly, going by the allegation of the petitioner concerning the illegible documents, it can be seen that the same was raised, mainly with reference to the F.I.Rs., final reports and connected documents produced by the Police in the respective crimes. Even though the petitioner specifically raised the contention that the copies of the documents furnished in relation to those crimes were not at all legible, a reading of the representation submitted by the petitioner would indicate that specific references to those crimes were also made in the representation as well. The purpose of Article 22(5) of the Constitution of India and section 7(2) of KAA(P)A is to ensure that the detenue gets a proper opportunity and materials to furnish a representation against the order of detention passed. In this regard, it is to be noted that, in case the legible copies of the documents relied on by the detaining authority were not WP(Crl) No.688 of 2022 16 furnished to the detenue, that would deprive him of the right to make a proper representation, and thereby the entire proceedings would get vitiated on account of the prejudice that may arise from the same. In this case, the lack of any mention of non-receipt of legible copies in the representation submitted by the petitioner, coupled with the specific averments in the said representation containing the details of the crimes which formed the basis of the order of detention, would lead to an irresistible conclusion that, either the contention of the petitioner that the detenue did not receive legible copies of the documents is false, or that he did not suffer any prejudice on account of the same, as he perfectly understood the contents of the grounds of detention. In this regard, the observations made by a Division Bench of this Court in are Rajan Abubacker v. State of Kerala [2017(4) KLT SN 64] very much relevant. In paragraph 17 of the said decision, it was observed as follows: > “17. The other ground canvassed by the learned counsel for the detenue that legible and readable copies of the FI statements of Crime Nos.237/2012 and 1009/2012 (cases pending for trial) were not served prejudicially affecting him, appears to be baseless as his acknowledgment in the records itself was to the effect that he received legible and readable copies. The submission of his representation with details, elaborately described would also fortify the fact that his precious rights guaranteed by the constitution have not been infringed in any manner. Therefore, there is no genuine ground to vitiate the WP(Crl) No.688 of 2022 17 detention order as urged by him.” The view which we have taken above is fortified by the observations made by this Court in Rajan Abubacker’s case (supra). Therefore, the contention raised by the learned counsel for the petitioner in this regard is only to be rejected. 13. The 3rd contention raised by the learned counsel for the petitioner is regarding the delay between the last prejudicial activity and the order of detention. It is a well-settled position of law that when there is an inordinate delay between the last prejudicial activity and the order of detention, the live link between the last prejudicial activity and the order is snapped. Therefore the proceedings are vitiated (See Sushantakumar Banik's case (supra) and Licil Antony's case (supra)). In this case, the aforesaid contention was raised by the learned counsel for the petitioner mainly on the ground that, the last prejudicial activity was on 19.4.2022 whereas the detention order was passed only on 30.6.2022 and thus, there is a delay of more than 71 days. However, we are not inclined to accept the said contention. In the counter affidavit, it has been specifically stated that in connection with the last prejudicial activity, the petitioner was arrested on WP(Crl) No.688 of 2022 18 20.4.2022 and released on bail as per the order passed by this Court only on 8.6.2022. In this case, the sponsoring authority submitted a report on 06.06.2022, taking note of the possibility that the petitioner is likely to be released on bail, and the order of detention was passed on 30.6.2022. Since the detenue was under detention until 8.6.2022, in connection with the last prejudicial activity, under no circumstances the period between the last prejudicial activity till the release of the detenue on bail in the said case can be treated as delay, snapping the live link between the last prejudicial activity and the order of detention. Since the detaining authority had acted upon the report dated 6.6.2022 and passed an order on 30.6.2022, the period taken for passing the said order cannot be treated as inordinate so as to warrant any interference. Therefore, the contention put forward by the learned counsel for the petitioner in this regard is also liable to be . rejected 14. The learned counsel for the petitioners further contends that the detenue was falsely implicated in the last three cases, which prompted the authorities concerned to initiate proceedings of detention vide the order impugned in this case. WP(Crl) No.688 of 2022 19 The learned counsel for the petitioner vehemently contended about the false nature of the allegations and the limited role of the petitioner in the commission of the offences. The attention of this Court was brought to the contents of FIR and the Final report submitted in the said cases, which are Crime No.315, 317, 314 of 2022 of Cherppu Police Station. We have carefully examined the contents of the records submitted in the said cases. The contention put forward by the learned counsel for the petitioner is that, in none of the cases, the specific role of the petitioner is revealed, and the persons who were arrested from the spot in connection with the aforesaid crimes were the other accused and not the detenue. It was therefore contended that a detailed inquiry as to the complicity of the detenue in the offences which are the subject matter of the order of detention is absolutely necessary. However, we are not inclined to accept the said contention. The competent authority had already examined the contents of the same and arrived at an objective satisfaction that the petitioner is involved in the said offences and, therefore, the proceedings were initiated. In Anitha Kumari v. State of Kerala [2015(4) KLT 632], it was observed by this Court that, when it is WP(Crl) No.688 of 2022 20 found, on investigation or inquiry by a competent police officer or authority that, the detenue had committed the offences mentioned in the respective clauses in section 2(p) read with 2 (t) of KAA(P)A, a further scrutiny by the detaining authority under section 3 as to the complicity of the detenue in the said offences is not necessary. The relevant observations made by this court in Anitha Kumari’s case (supra), read as follows; “7. The submission of the learned counsel for the petitioner is that the detaining authority should satisfy himself that there were materials to arrive at the conclusion that it was the detenue who committed the offence. In other words, the submission is that apart from the investigation conducted by the investigating officer the detaining authority also should have arrived at the conclusion whether the detenue had committed the crime. To consider this contention, it is necessary to advert to the scheme of the KAAPA in the matter of issuing an order of preventive detention under S.3. An order under S.3 can be issued either by the Government or by an officer authorised under sub-s.(2) of S.3. The Government or the officer authorised must arrive at the satisfaction on information received from a police officer not below the rank of Superintendent of Police. That information should be with regard to the activities of any ‘known goonda’ or ‘known rowdy’. ‘Known goonda’ and ‘known rowdy’ are defined respectively under clauses (o) and (p) of S.2 of the KAAPA. The requirement to satisfy the definition of ‘known goonda’ or ‘known rowdy’ is either finding of guilt of the detenue by a competent Court or finding in any investigation or enquiry by a competent police officer or other authority that the detenue had committed any offence within the meaning of ‘goonda’ as defined in clause (j) of S.2 or the particular sub-clause in clause (t) of S.2. When a person is made guilty by a competent Court, no other authority can look into the case to find out whether the person concerned is guilty or not. Likewise, where it is found, on investigation or enquiry by a competent police officer or authority, that the detenue has committed any offence mentioned in the respective clauses, a further scrutiny by the detaining authority under S.3 as to the complicity of the detenue in the offence is not contemplated. The detaining authority has to arrive at the objective satisfaction that the person concerned was convicted or found, on investigation or enquiry, to have committed the offence alleged. In other words, the satisfaction in this regard is only with respect to just verifying that the person sought to be WP(Crl) No.688 of 2022 21 detained is the person who is reported to be involved in the offence. The objective satisfaction further requires that the detaining authority must be satisfied that the offence alleged comes within the purview of clause (j) of S.2 in the case of ‘known goonda’ and clause (t) of S.2 in respect of a ‘known rowdy’. The detaining authority has also to satisfy that any of the provisos to clause (p) of Section 2 applies so that if the proviso applies in respect of a particular case, that case shall be omitted from the computation of the number of offences to be taken into account for deciding whether a person is a ‘known rowdy’. In the case of a ‘known goonda’, the detaining authority has also to satisfy whether the proviso to clause (o) of S.2 is satisfied and that the offence in respect of which a report was filed by a police officer before a lawful authority was consequent to the seizure of any of the items mentioned in the proviso. When the aforesaid tests are applied and requirements are satisfied, it can be said that the detaining authority has arrived at the objective satisfaction. Then comes the question of subjective satisfaction under S.3(1) of the KAAPA as to whether with a view to prevent the person concerned from committing any anti-social activity within the State of Kerala in any manner, it is necessary to make an order directing that the person concerned be detained. Though it is the duty of the detaining authority, namely, the Government or the officer authorised, to arrive at the objective as well as subjective satisfaction, it is not within the domain of the detaining authority to make an enquiry as to whether the person concerned has really committed the offence, whether there is sufficient evidence to arrive at a conclusion that he is guilty of the offence or whether any plausible defence is available to the accused in the particular case. Those are all matters beyond the jurisdiction of the detaining authority.” We are in perfect agreement with the observations made in this regard. The crucial aspect to be noticed is that, what is contemplated under Section 2(p) (iii) is that, to treat a person as a ‘Known rowdy’ there must be a finding to the effect that the detenue is involved in three offences described in the categories mentioned in the said provision, and such finding must have been by a competent police officer in or any other authority, based on an investigation or inquiry. Thus, one of the WP(Crl) No.688 of 2022 22 requirements is the finding by a “competent police officer or other authority”. Therefore, once the documents indicating such findings by a “competent police officer or other authority” are placed on record, the same can be accepted to arrive at an objective satisfaction without conducting a detailed inquiry by the detaining authority as to the veracity of the allegations, unless the said finding is per se perverse. In this case, the investigations were conducted by competent police officers. During such investigations, the petitioner's involvement was categorically found by the investigating officers, and he was implicated as the accused. In view of the fact that the competent police officer already found the complicity of the accused in the investigations conducted, a further inquiry as to the complicity of the petitioner in the aforesaid crimes is not warranted either by the detaining authority or by this Court while considering a challenge against the order of detention passed by the authorities concerned. 15. Despite the legal position being so, we have gone through the materials relating to the last three crimes referred to above and also the nature of the involvement of the petitioner for completeness. It is discernible from the said documents that, in WP(Crl) No.688 of 2022 23 all the said cases, there are specific allegations raised against the petitioner and the role played by him in the commission of the said offences along with the other accused persons were also clearly revealed. Therefore, the contention of the learned counsel for the detenue in this regard cannot be accepted as the documents placed before us indicate materials for attracting a prima facie case against him. In such circumstances, we do not find any merit in the aforesaid contention of the petitioner. 16. Yet another contention raised by the learned counsel for the petitioner is that, out of 12 cases, except in two cases, the proceedings were initiated based on complaints submitted by the police officers. According to the learned counsel for the petitioner, the proceedings initiated based on the complaint of the police, cannot form the basis of a decision for treating a person as a Known rowdy as contemplated under section 2(t) read with 2(p)(iii) of the KAA(P)A. It is true that, most of the cases referred to by the detaining authority were initiated based on complaints from police officers. It is also true that section 3(2) makes a distinction between a complaint submitted by other persons and the police officers while considering the offences WP(Crl) No.688 of 2022 24 which are to be reckoned for treating a person as Known rowdy as per section 2(t) read with 2(p)(iii). However, in Joicy v. State of Kerala [2018(1) KLT SN 58], the aforesaid question was considered elaborately and it was observed that the intention of legislation could only to avoid or prevent misuse or exploitation of the powers of Police personnel and it could never be to discard the complaints of police officers when they themselves become victims in the attack by such miscreants. It was further observed that the embargo in S.2(p) (iii) of KAA(P)A does not mean to say that complaints lodged by police officers who sustained injuries in the attack by the detenue, which resulted in the launching of prosecution against the assailants cannot be reckoned to pass a detention order to bring them under the definition of known rowdy of known goonda. Therefore, it is evident that, as held by this Court in Joicy's case (supra), the prohibition under section 2(p)(iii) cannot be made applicable when the crime was instituted based on a complaint submitted by the police officers who themselves happened to be the victims while discharging their duties. In this case, the details of the cases in which the petitioner was implicated as an accused would clearly indicate that in most WP(Crl) No.688 of 2022 25 cases, the crime happened to be registered as the petitioner, along with the other accused, assaulted the police officers. Crime No.1908/2017 of Ettumanoor Police Station, Crime No.2028/2017 of Hill palace Police Station, Crime No.1321/2018 of Kuravilangadu Police Station, Crime No.1032/2021 of Ettumanoor Police Station and Crime No.315/2022 of Cherppu Police Station are cases in which the petitioner and the other accused have assaulted the Police Officers and caused injuries to them while they were discharging their official duties. Therefore, in the light of the observations made in Joicy’s case (supra), the aforesaid cases are to be treated as offences which ought to be considered for the purpose of treating the petitioner as a Known rowdy as contemplated under section 2(p)(iii) of KAA(P)A. Therefore, the said contention of the learned counsel for the petitioner is also liable to be rejected. 17. There is yet another ground on which the writ petition is liable to be dismissed. The detenue was already detained in the year 2019 under the provisions of KAA(P)A, as per the order passed by the authority concerned on 7.2.2019 for a period of six months from 28.2.2019, and he was released after completion of WP(Crl) No.688 of 2022 26 the said period. Again, as the petitioner committed three more offences after such release, a further detention order was passed on 1.9.2021, which was interdicted by this Court before the completion of the said period. As per Section 13(2)(i) of KAA(P)A, if the detenue is found involved in one more offence which comes within the description of section 2(p) of the Act, after the completion of the first detention, a further order of detention can be passed. In this case, the initial order of detention was passed in respect of five cases, and after the petitioner's release, he got involved in seven other cases, whereas the requirement is involvement in a single offence. In this case, the materials would indicate that he was involved in more than one offence after the first detention. Hence the contentions raised by the learned counsel for the petitioner in this regard are only to be dismissed. 18. The learned counsel for the petitioner highlighted the delay in considering the representations submitted by the petitioner. Exhibits P2 and P3 are the representations dated 22.7.2022 submitted before the Government and the Advisory Board. The aforesaid contention was answered by the 1[st] respondent in paragraphs 17 and 20 of the counter affidavit. In WP(Crl) No.688 of 2022 27 paragraph 17, it is specifically averred by the 1[st] respondent that representation dated 22.7.2022 was received by the Government from the petitioner herein, the wife of the detenue. The aforesaid representation was considered, and since it was found that it lacked merit, it was rejected, and the same was communicated to the petitioner vide letter No.Home-SSA5/214/2022/Home dated 3.8.2022. With regard to Ext.P3 representation submitted by the petitioner before the Advisory Board, relevant averments are made by the 1[st] respondent in paragraph 20 of the counter affidavit. It is averred that the Advisory Board submitted a report bearing RC No.154/2022/KAAPA dated 15.9.2022, opining that there is sufficient cause for the detention of the person. Along with the report of the Advisory Board, a representation addressed to the Advisory Board submitted by the wife of the detenue was also received. The aforesaid representation was again examined along with the records, including the report of the Advisory Board, and it was found to be without any merits. Thereafter, the detention order was confirmed under Section 10(4) of the Act vide G.O(Rt) No.2586/2022/Home dated 19.9.2022, and later the fate of the representations was communicated to the WP(Crl) No.688 of 2022 28 petitioner as per letter No.Home-SSA5/214/2022-Home dated 22.9.2022. In the light of the above, we do not find any inordinate delay in considering the said representations. 19. Besides the same, there is yet another aspect to be noticed in this regard is that the representations referred to by the petitioner are dated 22.7.2022, and the Writ Petition was submitted on 30.7.2022, i.e. within a period of 8 days from the date of the representation and without waiting for the outcome of the representations. In this regard, the observations made by the Hon’ble Supreme Court in Senthamilselvi v. State of T.N. and Another [(2006)5 SCC 676] are to be taken note of. The relevant observations were made by the Hon’ble Supreme Court in paragraph 6 of the said decision, which reads as follows: “6. Coming to the plea that there was delay in disposal of the representation it is to be noted that the order of detention is dated 1-122005. The representation was sent on 11-12-2005 which was received by the respondents on 15-12-2005. The details were called for on 16-12-2005 which were received on 20-12-2005. The file was submitted on 21-122005 and dealt with by the Under-Secretary and Deputy Secretary on 2212-2005. The Minister concerned passed an order on 22-12-2005 and the order of rejection which was passed on 27-12-2005 was issued on 28-122005 which was sent to the Superintendent of the Jail where the detenue was incarcerated, which was communicated to the detenue. It was received by the prison authorities and it was served on the detenue on the day it was received by the jail authority. The factual scenario indicated above indicates that the representation was dealt with utmost expedition. There can be no hard-and-fast rule as to the measure of reasonable time and each case has to be considered from the facts of the case and if there is no negligence or callous inaction or avoidable redtapism on the facts of a case, the Court would not interfere. It needs no reiteration that it is the duty of the Court to see that the efficacy of the limited, yet crucial, WP(Crl) No.688 of 2022 29 safeguards provided in the law of preventive detention is not lost in mechanical routine, dull casualness and chill indifference on the part of the authorities entrusted with their application. When there is remissness, indifference or avoidable delay on the part of the authority, the detention becomes vulnerable. That is not the case at hand. It may be noted that the writ petition was filed on 22-12-2005, even before the order of rejection was served. That being so the detenue cannot make grievance that the State had not explained the position as to how his representation was dealt with. ” 19. In the light of the observations made above, the aforesaid contention of the petitioner is liable to be dismissed. 20. Thus, even after carefully considering all the relevant aspects, we do not find any justifiable reason to allow any of the reliefs sought by the petitioner in this Writ Petition. The materials placed before us would indicate that all the statutory requirements contemplated under the KAA(P)A have been complied with, and no irregularity or illegality warranting any interference in the proceedings is revealed. The petitioner was repeatedly getting involved in offences which come within the categories mentioned in 2(p) and 2(t) of the KAA(P)A. The authorities concerned had properly assessed the materials placed before them and arrived at an objective and subjective satisfaction as to the necessity of ordering the detention, and the orders in this regard were passed in due compliance with the statutory stipulations in this regard. WP(Crl) No.688 of 2022 30 In such circumstances, we do not find any merit in this Writ Petition, and accordingly, it is dismissed. Sd/- ALEXANDER THOMAS JUDGE Sd/ZIYAD RAHMAN A.A. JUDGE pkk WP(Crl) No.688 of 2022 31 ## `APPENDIX OF WP(CRL.) 688/2022` ``` PETITIONER’S EXHIBITS Exhibit P1A TRUE COPY OF ORDER NO. DCKTM/5978/2021/HL DATED 30.06.2022 OF THE 2ND RESPONDENT Exhibit P2TRUE COPIES OF THE REPRESENTATIONS DATED 22.07.2022 Exhibit P3TRUE COPIES OF THE REPRESENTATIONS DATED 22.07.2022 ```