High Court of KeralaDivision BenchWrit petition allowed; detention order quashed;...

Baby v. State of Kerala & Ors.

Case / Petition Number:WP(Crl).No. 338 of 2016 (S)

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • Thottathil B. Radhakrishnan
  • Devan Ramachandran
Judgment Date
2016-10-21
Court Decision / Holding
The detention order under KAAPA Act dated 22.04.2016 is quashed. The detenu, Manikandan @ Mani, is to be released forthwith unless his detention is required in connection with any other case. The Registry is directed to communicate the gist of the judgment to the Superintendent of Central Prison, Kannur.
Final Disposition
Writ petition allowed; detention order quashed; detenu to be released forthwith.

Parties to the Case

Appellants / Petitioners

  • Baby

Respondents

  • State of Kerala, represented by Additional Chief Secretary to Government, Home Department, Thiruvananthapuram
  • The District Collector & District Magistrate, Palakkad
  • The District Police Chief, Palakkad
  • Sub Inspector of Police, Town North Police Station, Palakkad

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri Vipin Narayan
  • • Smt Mitha Sudhindran

Counsels for Respondents

  • • Sri K.V. Sohan, State Attorney

Case Synopsis & Summary

This is a writ petition (criminal) under WP(Crl). No. 338 of 2016 (S) filed in the Kerala High Court challenging the preventive detention of the detenu, Manikandan @ Mani, under the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA). The detenu was initially arrested following a prejudicial act dated 31.01.2016 and remained in custody on remand while criminal proceedings progressed. On 22.04.2016, a deten­tion order was issued invoking KAAPA for six months, annexed grounds of detention; the order was approved by the Advisory Board and a government confirmation followed. The petition contends that the detention was ordered while the detenu was in lawful custody and that the mere likelihood of bail or prior prejudicial activities without credible, record-based justification cannot sustain preventive detention. The court cites Smt. Shashi Aggarwal v. State of U.P. (AIR 1988 SC 596) to emphasize that material beyond the mere possibility of bail is required, and that there must be credible information on record showing that, if released on bail, the detenu would act prejudicially to public order. On appraisal of the records, the court finds no such compelling grounds, and concludes that the grounds for detention do not meet the constitutional and statutory demands. The detention order is quashed, and the detenu is to be released forthwith, with directions to communicate the judgment gist to the prison authority."

Provisions of Law Cited

Kerala Anti-Social Activities (Prevention) Act, 2007, Section 3(I)Constitution of India, Article 22(5)

Legal Doctrines & Maxims

  • Smt. Shashi Aggarwal v. State of U.P., AIR 1988 SC 596 — bail alone cannot justify detention; credible information required.
  • Detention must be grounded on credible material showing likelihood of prejudicial acts if released on bail.
  • Art. 22(5) of the Constitution provides safeguards against preventive detention; detention must be supported by statutory requirements.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petition contends that the preventive detention order dated 22.04.2016 was issued while the detenu was in custody under remand, with no independent material to establish a real and credible necessity to prevent prejudicial activities. It is urged that mere possibility of bail or the detenu’s prior unrelated activities cannot by themselves justify detention; the detaining authority must demonstrate credible grounds showing that, if released on bail, the detenu would likely engage in prejudicial acts affecting public order. Reliance is placed on the principle that detention can be sustained only with material beyond mere conjecture, and particularly the need for credible information on record as to future likelihood of prejudice to public order.

Contentions of Respondents

The respondents contend that the detaining order was based on the detenu’s known pattern of prejudicial activities and that the KAAPA Act requires preventive detention when there is reasonable apprehension of public order disturbance. They argue that the order was supported by grounds of detention, the advisory board’s approval, and a government confirmation suggesting imminent risk of prejudice unless detained. They assert that prior prejudicial acts and the likelihood of repetition justify preventive detention, even if the detenu is in custody; the balance of convenience supports detention to maintain public order.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Smt. Shashi Aggarwal v. State of U.P.AIR 1988 SC 596PositiveThe court relies on the principle that preventive detention cannot be sustained simply on the possibility of bail; credible, record-based grounds showing potential prejudice to public order are required.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **FRIDAY, THE 21ST DAY OF OCTOBER 2016/29TH ASWINA, 1938** **WP(Crl.).No. 338 of 2016 (S) -----------------------------** **PETITIONER: -----------** **BABY, AGED 54 YEARS, W/O.VASUDEVAN, UPPATHU VEEDU, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS.SRI.VIPIN NARAYAN SMT.MITHA SUDHINDRAN** **RESPONDENT(S):** **--------------** |**1.**|**STATE OF KERALA, REPRESENTED BY**| |---|---| ||**ADDITIONAL CHIEF SECRETARY TO GOVERNMENT,**| ||**HOME DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2.**|**THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,**| ||**COLLECTORATE, PALAKKAD - 678 001.**| |**3.**|**THE DISTRICT POLICE CHIEF,**| ||**PALAKKAD, PALAKKAD - 678 001.**| |**4.**|**SUB INSPECTOR OF POLICE,**| ||**TOWN NORTH POLICE STATION,**| ||**PALAKKAD - 678 001.**| ||**BY SRI.K.V.SOHAN, STATE ATTORNEY**| **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **mbr/** ## **WP(Crl.).No. 338 of 2016 (S)** ## **-----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** |**PETITIONER(S)' EXHIBITS:**|**PETITIONER(S)' EXHIBITS:**| |---|---| |**-----------------------**|| |**EXHIBIT P1.**|<br>**TRUE COPY OF THE ORDER OF DETENTION**| ||**NO.S1-2016/21590/9 DATED 22.04.2016 ISSUED BY**| ||**THE 2ND RESPONDENT UNDER SECTION 3(I) OF KERALA**| ||**ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT 2007.**| |**EXHIBIT P2.**|<br>**TRUE COPY OF THE GROUNDS OF DETENTION**| ||**DATED 22.04.2016.**| |**EXHIBIT P3.**|<br>**TRUE COPY OF THE REPORT FILED BY THE 3RD**| ||**RESPONDENT DATED 29.03.2016.**| |**EXHIBIT P4.**|<br>**TRUE COPY OF THE REPORT FILED BY THE 3RD**| ||**RESPONDENT DATED 13.04.2016.**| |**EXHIBIT P5.**|<br>**TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.782/2013 OF PALAGHAT TOWN NORTH POLICE**| ||**STATION ALONG WITH THE FIR.**| |**EXHIBIT P6.**|<br>**TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.897/2013 OF PALAGHAT TOWN NORTH POLICE**| ||**STATION ALONG WITH THE FIR.**| |**EXHIBIT P7.**|<br>**TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.1260/2015 OF PALAGHAT TOWN NORTH POLICE**| ||**STATION ALONG WITH THE FIR.**| |**EXHIBIT P8.**|<br>**TRUE COPY OF THE FIR IN CRIME NO.100/2016 OF**| ||**PALAGHAT TOWN SOUTH POLICE STATION.**| |**RESPONDENT(S)'**|**EXHIBITS:**<br>**NIL**| |**-----------------------**|| ||**//TRUE COPY//**| **P.S. TO JUDGE** **mbr/** ## Thottathil B.Radhakrishnan & Devan Ramachandran, JJ. ----------------------------------------------- W.P. (Crl.) No.338 of 2016 S ----------------------------------------------- Dated this the 21[st] day of October, 2016 ## **JUDGMENT** ## Thottathil B.Radhakrishnan, J. We have heard the learned counsel for the petitioner and the learned State Attorney in this writ petition seeking issuance of a writ in the nature of habeas corpus or other appropriate writ, direction or order interfering with the preventive detention of the petitioner's son Manikandan @ Mani. 2. On the basis of a prejudicial activity stated to have occurred on 31.01.2016, the detenu was arrested and detained after lodgment of the First Information Report. Pending those criminal proceedings, the regular bail court did not come to the aid of the detenu. He thus continued under detention following arrest from 21.02.2016. While so, on 27.04.2016, an order of WPCR 338/16 2 detention dated 22.04.2016 was served on him invoking the provisions of Kerala Anti-Social Activities (Prevention) Act, 2007, 'KAAPA Act', for short, by taking the stand that he is a known rowdy having regard to the different prejudicial activities attributed to him. 3. Following execution of the detention order, the detenu was served with what is called the grounds of detention. The detention order was approved by the competent authority, which is the Advisory Board in terms of the provisions of the KAAPA Act. Thereafter, the Government issued a confirmation order, under which, the detention was confirmed to be for six months. That period is due to expire on 27.10.2016. 4. The fact of the matter remains that the detention order was framed, issued and executed while the person was undergoing detention following arrest and under judicial orders of remand. The only reason that is apparently seen in the proposal for detention, as also, in WPCR 338/16 3 the detention order is that the detenu is likely to repeat his prejudicial activities detrimental to the interest of the public and thereby indulge in activities, which would fall within the terms of 'gunda' and 'known gunda' under the KAAPA Act. The mere fact that a person, who is under detention following arrest and order of remand, is likely to be granted bail by itself is not a ground on which preventive detention order is to be made. There must be more clinching and real apprehension in the mind of any sovereign Government and the detaining authority in terms of the statutory provisions that in all likelihood, the detenu, if released on bail, is likely to indulge in such activities as would be prejudicial and such activities have to be foreseen to ensure public order and peace. We are fortified in taking the views taken in the judgment of the Hon'ble Supreme Court of India in **Smt.Shashi Aggarwal v. State of U.P.** (AIR 1988 SC 596). Their Lordships held that the possibility of the court granting WPCR 338/16 4 bail may not be sufficient. Nor a bald statement that the person would repeat his criminal activities would be enough. There must also be credible information or cogent reason apparent on the record that the detenu, if enlarged on bail, would act prejudicially to the interest of public order. The said precedent proceeds to state that, where the detention order was passed against the detenu, who was already in jail, merely on the ground that the detenu was trying to come out on bail and there was enough possibility of his being bailed out and there was no material on record to show that the detenu, if released on bail, was likely to commit activities prejudicial to the maintenance of public order, the order of detention would be illegal. 5. In the case in hand, having examined the records, we do not find that there is any ground apart from reiterating that previous three prejudicial activities have to be tagged along with the last among the WPCR 338/16 5 prejudicial activities to create a chain of events that would culminate into a point of the likelihood of the detenu committing further acts, which have to be prevented. 6. It is pointed by the learned State Attorney that the earlier prejudicial activities were after obtaining bail orders. Having regard to the quality of the findings that have to be sustained by the detaining authority for entering into a subjective satisfaction for the purpose of the KAAPA Act, vis-a-vis the personal liberty issues as referable to Article 22(5) of the Constitution of India, we think that the balance of convenience tilts in favour of holding that the grounds stated in the detention order and the confirmation order were insufficient to enforce a preventive detention order as against the detenu involved in this case under the provisions of the KAAPA Act. Hence, the order of detention on the detenu as per Exhibit P1 is quashed. The detenu shall be released WPCR 338/16 6 forthwith unless his detention is required in connection with any other case. The Registry is directed to communicate the gist of the judgment forthwith to the Superintendent of Central Prison, Kannur. Thottathil B.Radhakrishnan, Judge Devan Ramachandran, Judge tkv