Chellamma v. State of Kerala & ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 3RD DAY OF DECEMBER 2012/12TH AGRAHAYANA 1934 WP(Crl.).No. 375 of 2012 (S) ---------------------------PETITIONER: ------------CHELLAMMA, W/O.HAMSA, AGED 66 YEARS MELEVILA KIZHAKKETHIL VEEDU, MYLAKKAD POST ADICHANALLUR VILLAGE,KOLLAM TALUK, KOLLAM DISTRICT PIN - 691 571. BY ADVS.SRI.K.J.MOHAMMED ANZAR SRI.C.P.UDAYABHANU SRI.G.SIJI SRI.S.VISHNU (TRIPUNITHURA) RESPONDENTS: -------------- 1. STATE OF KERALA REP. BY THE HOME SECRETARY, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. THE DISTRICT COLLECTOR &amp; THE DISTRICT MAGISTRATE, KOLLAM COLLECTORATE, KOLLAM 691 001. 3. THE CITY COMMISSIONER OF POLICE, KOLLAM CITY KOLLAM DISTRICT 691 001. 4. THE SUB INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, KOTTIYAM KOLLAM DISTRICT691 004. BY ADDL. STATE PUBLIC PROSECUTOR (SHRI.TOM JOSE PADINJAREKKARA) THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30-11-2012, THE COURT ON 03-12-2012 DELIVERED THE FOLLOWING: W.P.(CRL.) 375 OF 2012 ## APPENDIX. ## PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE DETENTION ORDER NO.M9-33047/KAA(P)A DATED 8.6.2012 OF THE DISTRICT MAGISTRATE, KOLLAM. EXT.P2: TRUE COPY OF THE REORT OF THE 3RD RESPONDENT CITY COMMISSIONER OF POLICE, KOLLAM, DATED 30.5.2012. EXT.P3: TRUE COPY OF THE PRELIMINARY REPORT OF THE 4TH RESPONDENT SUB-INSPECTOR OF POLICE, KOTTIYAM POLICE STATION, DATED 26.5.2012. ## RESPONDENTS' EXHIBITS: 'NIL' -/ TRUE COPY /- P.S. TO JUDGE. KRS. ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P.(Crl.) No. 375 of 2012-S ------------------------------------------------------------Dated this the 3[rd] day of December, 2012 ## **JUDGMENT** ## **Babu Mathew P. Joseph, J.** The petitioner is the wife of the detenu. The detenu was placed under preventive detention with immediate effect at Central Prison, Thiruvananthapuram, by Ext.P1 order of detention dated 8.6.2012 passed by the second respondent, the District Collector and District Magistrate. The second respondent has passed Ext.P1 order exercising his powers under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short, KAA(P)A). The detenu is an active political and social worker and he is a member of Adichanalloor Grama Panchayath. Pursuant to Ext.P1, the detenu was taken into custody on 9.7.2012 and admitted him to the Central Prison, Thiruvananthapuram. Subsequently, he was transferred to the Central Prison, Viyyur, and is continuing under detention there. Ext.P1 order has been [WP(Crl.).No.375/2012] 2 approved by the Government, the first respondent, as per order dated 23.7.2012. The petitioner challenges Ext.P1 order of detention on various grounds in this Writ Petition. 2. Heard Shri. K.J.Mohammed Anzar, the learned counsel appearing for the petitioner, and Shri. Tom Jose Padinjarekkara, the learned Addl. State Public Prosecutor appearing for the respondents. Detailed arguments have been advanced by both the sides before us. 3. The City Police Commissioner, third respondent, submitted Extd.P2 report before the second respondent requesting him to pass an order under Section 3 of KAA(P)A for detaining the detenu as he is a known goonda indulging himself in anti-social activities necessitating his detention. The second respondent, after considering Ext.P2, found the detenu to be a known goonda as defined under Section 2(o)(ii) of KAA(P)A. The second respondent, in Ext.P1 order of detention, relied on the following five criminal cases in which the detenu is involved: [WP(Crl.).No.375/2012] 3 |**Sl.**<br>**N**<br>**o.**|**Crime**<br>**Number**|**Name of**<br>**Police Station**|**Date of**<br>**Occurrence**|**Offence Alleged**| |---|---|---|---|---| |1|1081 of 2011|Kottiyam|01.09.2011|Section 20 of the Kerala<br>Protection of River Banks<br>and Regulation of Removal<br>of Sand Act.| |2|63 of 2012|Kottiyam|11.01.2011|Section 20 of -do-| |3|126 of 2012|Kottiyam|19.01.2012|Section 20 of - do-| |4|201 of 2012|Kottiyam|02.02.2012|Section 20 of -do-| |5|217 of 2012|Kottiyam|03.02.2012|Section 20 of -do-| In all these cases, after investigation, complaints have been filed before the court. 4. Learned counsel for the petitioner submitted that there was inordinate and unexplained delay in passing Ext.P1 detention order after the last alleged anti-social activity. This is the ground pressed into service by the learned counsel for the petitioner at the time of hearing. The second respondent has relied on Crime No.217 of 2012 of Kottiyam Police Station also for the purpose of arriving at the finding that the detenu was continuing his antisocial activities. The occurrence in Crime No.217 of 2012 was on 3.2.2012. Therefore, the last anti-social activity alleged against the detenu has taken place on 3.2.2012. But, Ext.P1 order of detention has been passed by the second respondent only on [WP(Crl.).No.375/2012] 4 8.6.2012. This shows that there was a delay of more than four months in passing the order of detention after the last anti-social activity on 3.2.2012. The second respondent observed in Ext.P1 order that if the detenu was at large he would indulge in antisocial activities affecting the environmental balance. So, in order to protect the members of the general public from the anti-social activities of the detenu, Ext.P1 order has been passed. The contention of the petitioner is that Ext.P1 order of detention is bad owing to inordinate and unexplained delay. That the cause of delay has not been explained at all in Ext.P1. Moreover, the respondents 1 and 2 have not given any satisfactory explanation in their counter affidavits for the delay caused in passing Ext.P1 order. So, the delay occurred in this case remains unexplained by the respondents 1 and 2. Mere delay in passing the detention order after the last anti-social activity alone is not sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned. 5. Dealing with the delay in passing the detention order, the Supreme Court held in **T.A. Abdul Rahman** v. **State of Kerala** (AIR 1990 SC 225) as follows: [WP(Crl.).No.375/2012] 5 “........However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.” Dealing with the unexplained delay, the Supreme Court in **P.N.Paturkar** v. **S. Ramamurthi** (AIR 1994 SC 656) held as follows: “14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order......” 6. The maximum period of detention under KAA(P)A shall not exceed six months from the date of detention as determined under Section 12. KAA(P)A is intended to effectively preventing and controlling anti-social activities in the State of Kerala. Therefore, the detaining authority is passing a detention order exercising his powers under Section 3 of KAA(P)A for the purpose [WP(Crl.).No.375/2012] 6 of preventing a known goonda or known rowdy from committing any anti-social activities. This is for protecting the members of the general public from such anti-social activities. The Legislature thought it proper to fix the maximum period of detention under KAA(P)A as six months. In the case on hand, the last alleged anti-social activity occurred on 3.2.2012. But, the second respondent has passed Ext.P1 detention order only on 8.6.2012. When the maximum period for which a person can be detained is determined to be six months, a delay of more than 4 months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. Here, no explanation has been given for the delay either in Ext.P1 detention order or in the counter affidavits filed by the respondents 1 and 2. Therefore, the inordinate and unexplained delay occurred in this case is fatal in nature and hence, it vitiates the detention order. Such a delay, definitely, cast doubt on the genuineness of the subjective satisfaction of the detaining authority. Such delayed order cannot be considered as one passed for protecting the members of the general public from the anti-social activities as claimed by the second respondent in [WP(Crl.).No.375/2012] 7 Ext.P1. For the foregoing reasons, the petitioner is entitled to succeed on the ground urged by her learned counsel. Ext.P1 detention order is liable to be quashed and the detenu is entitled to be released forthwith. Therefore, we quash Ext.P1 order issued by the second respondent and approved by the first respondent. The Superintendent, Central Prison, Viyyur, is directed to set the detenu at liberty forthwith, if he is not wanted in any other case. The Registry of this Court is directed to issue release order forthwith. This Writ Petition is allowed. Sd/- **PIUS C. KURIAKOSE, JUDGE.** Sd/- **BABU MATHEW P. JOSEPH,** **JUDGE.** krs.