A.V. Saudha v. State of Kerala and others (W.P(Crl).No.845 of 2023)

W.P(Crl).No.845 of 2023 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR MONDAY, THE 4[TH] DAY OF DECEMBER 2023 / 13TH AGRAHAYANA, 1945 WP(CRL.) NO. 845 OF 2023** ## **CRIME NO.2394/2016 OF Kannur Town, Kannur** ## **PETITIONER:** A.V. SAUDHA AGED 55 YEARS W/O ASHRAF, RESIDING AT "ALIAS", NEAR JUMA MASJID, NEAR BHANU SMARAKA VAYANASALA, CHALAD POST, KANNUR DISTRICT., PIN - 670014 BY ADV P.K.RAVISANKAR ## **RESPONDENTS:** 1 STATE OF KERALA REP. BY ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, THIRUVANANTHAPURAM -, PIN - 695001 2 DISTRICT MAGISTRATE, (DISTRICT COLLECTOR), KANNUR, PIN - 670001 3 DISTRICT POLICE CHIEF KANNUR CITY, KANNUR, PIN - 670001 4 SUPERINTENDENT CENTRAL PRISON AND CORRECTIONAL HOME, KANNUR, PIN - 670004 W.P(Crl).No.845 of 2023 2 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) ## **OTHER PRESENT:** SRI.K.A.ANAS-GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 01.11.2023, THE COURT ON 4.12.2023 DELIVERED THE FOLLOWING: W.P(Crl).No.845 of 2023 3 ## **ANU SIVARAMAN, J. & C.PRATHEEP KUMAR, J.** **= = = = = = = = = = = = = = = = = = = W.P.(Crl).No.845 of 2023** **= = = = = = = = = = = = = = = = = = = Dated this the 4th day of December, 2023** ## **JUDGMENT** ## **Anu Sivaraman J.** - 1.This writ petition (criminal) is filed challenging an order of detention passed against the son of the petitioner under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act') . - 2.The contention raised initially was that the detention order was dated 27.7.2023 and the petitioner's son was arrested on 28.7.2023 in pursuance thereto. It was contended that no order approving the detention had been passed and that therefore the detention was illegal. W.P(Crl).No.845 of 2023 4 - 3.The learned Government Pleader had produced the copy of the order of the Government approving the detention dated 16.8.2023 and had also made available the arrest and custody memos showing that the detenue was arrested on 4.8.2023 and the order order approving the detention had been passed by the Government under Section 3(3) of the Act on 16.8.2023 well within 12 days excluding holidays from the date of detention. Thereafter, counter affidavits have been placed on record by the 1[st] and 2[nd] respondents. - 4.We have heard the learned counsel for the petitioner and the learned Government Pleader. - 5.Though several contentions were raised in the writ petition, three main grounds are urged. It is contended that the detenue is not a known goonda under Section 2(o) of the Act. The learned counsel for the petitioner contends that “out of the five offences narrated in Exhibit P1, four are instituted on the basis of complaints filed by Police Officers and hence are not liable to be reckoned under Section 2(o)(ii) of the Act. The W.P(Crl).No.845 of 2023 5 only other offence remaining ended in acquittal of the petitioner by the Assistant Sessions Court. It is, therefore, contended that there is no material to categorise the detenue as a known goonda and that the detention order passed is therefore, illegal and invalid. It is further contended that since the detenue had been acquitted in the 3[rd] crime by judgment in S.C.No.405 of 2020 dated 17.3.2021 of the Assistant Sessions Court, Kannur, the fact that the aquittal was not noticed by the detaining authority would reveal total want of application of mind which would vitiate the order of detention. 6. It is contended that there is nothing to show that the copy of the detention order along with the entire documents evidencing the grounds for detention had been forwarded forthwith to the Government and the Director General of Police as provided under Section 3(3) of the Act. - 7.It is further contended that since the last prejudicial activity alleged against the detenue was on 16.3.2023 and since the order of detention is rendered only on 27.7.2023, there is W.P(Crl).No.845 of 2023 6 undue and unexplained delay in passing the order of detention which vitiates the entire proceedings. 8.Sri.Anas, the learned Government Pleader submits that five cases were considered for detention of the detenue. Two cases were under the NDPS Act. In three cases, the final report had been filed and in one case, the accused contends that he had been acquitted. Relying on Section 7(4) of the Act, it is contended that even if the one case where the detenue was acquitted is disregarded, there would be sufficient number of cases for categorising the detenue as a known goonda under Section 2(o)(ii) of the Act and that only two cases were sufficient for detention. It is submitted that in the first two cases, the allegation was that the accused and others unlawfully assembled with weapons, assaulted and injured the Police officers and destroyed the police jeep. In the 2[nd] crime the allegation was specifically that the accused drove the car towards the police jeep with the intention to kill the police personnel and damaged the police jeep. The 3[rd] crime was registered under Section 363, 364A, 365, 395 and 398 IPC. W.P(Crl).No.845 of 2023 7 While the 4[th] and 5[th] crimes reckoned were under the provisions of the NDPS Act. 9.Relying on the counter affidavit filed on behalf of respondents 1 and 2, it is contended that all the elements for a subjective satisfaction were met in the instant case and all the procedural formalities have been followed. It is further contended that the order of detention along with the grounds and all supporting documents had been forthwith communicated to the Government and to the Director General of Police as provided under Section 3(3) of the Act and that the necessary records for satisfying this Court have been made available for perusal. 10.On the question of delay in passing the detention, it is submitted that the last prejudicial activity was on 16.3.2023 and the detenue was arrested in connection with the said crime on 17.3.2023, he was released on bail only 19.5.2023. Thereafter, the first report was generated after obtaining all necessary documents on 27.6.2023 and a further report was submitted on 25.7.2023 and the detention order was passed on W.P(Crl).No.845 of 2023 8 27.7.2023. The time taken from the date of the last prejudicial activity to the date of passing the detention order was only four months and ten days and the time taken from the release of the detenue on bail to the passing of the detention order was only 69 days. - 11.On a perusal of the documents made available, we notice that the detention order along with all supporting documents had been forwarded by mail by the Detaining Authority to the Government and to the Director General on the day of the detention itself and the hard copies had also been forwarded on 29.7.2023. 12.The contention of the learned counsel for the petitioner that the crimes in which complaints are submitted by Police officers cannot be reckoned is not liable to be accepted in the light of the judgment of this Court in **Joicy** v. **State of Kerala and others** [2018 (1) KHC 37]. Since the allegations were specifically that there was attempt at attacking and physically harming the police officers, the fact that the complaint was W.P(Crl).No.845 of 2023 9 lodged by police officers, by itself, cannot make a difference to the situation. The NDPS cases where more than small quantity is recovered and there is clear allegation that the possession was for the purpose of sale can also be reckoned for satisfying the objective satisfaction. Further, the contention that the detenue had been acquitted in one of the cases will also not have any impact on the order in the light of the provisions contained in Section 7(4) of the Act which reads as follows:- “S.7(4) The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, nonexistent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied. “ 13.Having considered the contentions advanced, we notice that even if the 3[rd] crime is not considered, there are four offences committed by the detenue which would meet the requirement W.P(Crl).No.845 of 2023 10 of the provisions of Section 2(j) and 2(o) of the Act. It is clear that the order was passed on the detaining authority being satisfied that the detention is absolutely essential. The detention order and relevant documents were also served on the detenue and the detenue was specifically advised that he can file a representation against the detention order before the Government and the Advisory Board. It is stated that the detention order and the supporting documents were forwarded to the Government and the Director General of Police on 27.7.2023 itself. 14. Further, on the question of delay in passing the order of detention also, since the detenue was under detention from the day after the date of detention and was enlarged on bail only on 19.05.2023, the time taken from the date of release on bail alone needs to be considered. The counter affidavits filed by respondents 1 and 2 clearly explain the reason for the time taken from the date of release of the detenue on bail till the date of the order of detention. We are, therefore, of the opinion that the detention order cannot be assailed on the ground of W.P(Crl).No.845 of 2023 11 ## undue or unexplained delay. In view of the discussions as above, we find no merit in the contentions raised by the petitioner. The W.P.(Crl.) fails and the same is, accordingly, dismissed. sd/- **Anu Sivaraman, Judge** sd/- **C.Pratheep Kumar, Judge** sj30/10 W.P(Crl).No.845 of 2023 12 ## **APPENDIX OF WP(CRL.) 845/2023** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE ORDER OF DETENTION NO. I/270337/2023-DCKNR/8355/2023-SS1 DATED 27-7-2023 ISSUED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE GROUNDS OF DETENTION NO. I/270331/2023-DCKNR/8355/2023-SS1 DATED 27-7-2023 ISSUED BY THE 2ND RESPONDENT Exhibit P3 TRUE COPY OF THE JUDGMENT DATED 17-32021 IN S.C. NO. 405 OF 2020 ON THE FILES OF ASSISTANT SESSIONS COURT, KANNUR Exhibit P4 TRUE COPY OF THE F.I.R. ALONG WITH F.I.S. IN CRIME NO. 671 OF 2022 OF THALASSERY POLICE STATION True copy PS to Judge