Fousiya N. v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 1ST DAY OF FEBRUARY 2016/12TH MAGHA, 1937 WP(Crl.).No. 494 of 2015 (S) ----------------------------- PETITIONER(S): --------------------- FOUSIYA N., W/O.SHIHABUDHEEN AGED 25 YEARS, PALAKKAVALAPPIL HOUSE PUTHUPPALLY POST CHEMRAVATTOM, TIRUR MALAPPURAM DISTRICT. BY ADVS.SRI.SALIM V.S. SRI.H.NUJUMUDEEN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR MALAPPURAM COLLECTORATE, CIVIL STATION MALAPPURAM, PIN 676 505. 3. DISTRICT POLICE CHIEF, MALAPPURAM MALAPPURAM DISTRICT, PIN 676 001. 4. SUB INSPECTOR OF POLICE TIRUR POLICE STATION MALAPPURAM DISTRICT, PIN 676 101. R1-R3 BY ADV. DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI R BY GOVERNMENT PLEADER SMT.KOCHUMOL KADAVATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## W.P.(CRL.) NO.494/2015 ## APPENDIX ## PETITIONER'S EXHIBITS : EXHIBIT P1: TRUE COPY OF THE ORDER OF DETENTION DATED 9.9.2015 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P2: TRUE COPY OF THE REPORT DATED 27.6.2015 SUBMITTED BY THE THIRD RESPONDENT. EXHIBIT P3: TRUE COPY OF THE ORDER DATED 30.10.2015 PASSED BY THE FIRST RESPONDENT. ## RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE ## **K.T.SANKARAN & K.P.JYOTHINDRANATH, JJ.** -------------------------------------- W.P.(Crl) No.494 of 2015 -------------------------------------Dated this the 1[st] day of February, 2016 ## _**JUDGMENT**_ ## _**K.T.Sankaran, J.**_ As per Exhibit P1 order of detention dated 9.9.2015, the husband of the petitioner, namely, Shihabudheen was detained under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA'). The order of detention was executed on 18.9.2015. It was confirmed on 30.10.2015. The period of detention is six months. Shihabudheen was classified as a known rowdy. The detenu is involved in 15 criminal cases. It is submitted that in 11 cases final report was filed and four cases are under investigation. 2. The learned counsel for the petitioner submitted that W.P.(Crl) No.494/2015 2 the last prejudicial activity alleged against the detenu was on 13.3.2015 and the order of detention was passed only on 9.9.2015 and therefore, the live link between the prejudicial activity and the order of detention was snapped. The order of detention is thus vitiated and it is liable to be quashed. This ground has been taken in ground D of the Writ Petition. In answer to ground D, the third respondent in his counter stated that there was no willful delay on the part of the third respondent, that the Sub Inspector of Police, Tirur, forwarded a proposal to initiate KAAPA against the detenu and that report was forwarded to the District Police Chief on 4.6.2015 along with the relevant details. For the collection of documents and the preparation of draft proposal, the officer took some time to complete the process. The District Police Chief, Malappuram, after perusal of the documents, forwarded the proposal to the W.P.(Crl) No.494/2015 3 District Magistrate, Malappuram on 27.6.2015, who on perusal of the files issued a verification letter on 30.6.2015 for production of additional documents. The police furnished those additional documents to the District Magistrate on 24.8.2015. After considering the proposal and after reaching both the subjective and objective satisfaction, the District Magistrate issued the detention order on 9.9.2015. 3. The learned Public Prosecutor brought to our notice that the last crime referred to in the order of detention, namely, Crime No.435 of 2015 of Tirur Police Station was originally registered under Section 306(1)(c) and later, a report was filed before the Magistrate's Court for altering the section of offence from 306(1)(c) to 306 I.P.C. The learned Public Prosecutor also submitted that under Section 2p(iii), there must W.P.(Crl) No.494/2015 4 be a finding on enquiry by a competent police officer and the police must prima facie arrive at the conclusion that the offence was committed by the person concerned. It is, therefore, submitted that the date of the last prejudicial activity alone may not be a relevant factor to ascertain whether the live link has been snapped. 4. The learned counsel for the petitioner relied on the decisions in **Abidha Beevi v. State of Kerala (2013(1) KLT** **286)** , **Jimesh Jose v. State of Kerala (2013(1) KLT 447)** to support the contention that the live link has been snapped. A similar contention raised in W.P.(Crl.) No.493 of 2015 was rejected by us, holding thus : “10. The learned counsel for the petitioner submitted that the last prejudicial activity alleged against the detenu was on 17.02.2015 and the order W.P.(Crl) No.494/2015 5 of detention was issued only on 17.08.2015, six months after the last prejudicial activity. The learned counsel submitted that the period for which a person can be detained under the KAA(P) Act is six months and if an order of detention is passed after the expiry of six months from the date of the last prejudicial activity, it has to be taken that the live link between the prejudicial activity and the order of detention was snapped. The learned counsel relied on two decisions of this Court in **Abidha Beevi v. State of Kerala [2013 (1) KLT 286]** and **Jimesh Jose v. State of Kerala [2013 (1) KLT 447]** . In these decisions the same Division Bench held that the cause for the delay between the date of last prejudicial activity and the date of passing the detention order was not explained. The respondents did not give any satisfactory explanation for the delay in the counter affidavit as well. The delay remained unexplained. Even then the Division Bench cautioned that “mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned”. In Jimesh Jose's case, the Division Bench held that when the maximum period for which W.P.(Crl) No.494/2015 6 a person can be detained is determined to be six months, delay of 4 ½ months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. This finding was arrived at on the basis of the fact situation in that case where the order of detention as well as the counter affidavit did not provide any explanation for the delay. The Division Bench was only making a stress that inordinate and unexplained delay would be fatal to the order of detention. It is not laid down as law in Jimesh Jose's case (cited supra) that whenever the period of six months from the date of last prejudicial activity is over, there can be no order of detention. 11. In **Praseedha Shiju v. State of Kerala and Ors. [2013 (2) KHC 656]** , another Division Bench of this Court held that where there is a delay of three months in passing the order of detention after the alleged last anti-social activity, it cannot be said that the live link has been snapped or the detention order is vitiated, provided the delay is properly explained. In **Golam Hussain Alias Gama v. Commissioner of Police, Calcutta and Ors. [AIR 1974 KHC 690 = AIR 1974 SC 1336]** , the Hon'ble Supreme Court held that there must be a live W.P.(Crl) No.494/2015 7 link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention. This credible chain would be snapped if there is too long and unexplained an interval between the offending acts and the order of detention. However, it was held that “no mechanical test by counting the months of interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation”. In **Gora v. State of West Bengal [AIR 1975 SC 473]** , the Hon'ble Supreme Court relied on the decision in **[AIR 1974 SC 1336]** and held thus: “There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to W.P.(Crl) No.494/2015 8 be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the court for the purpose of determining the main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it.” 12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six moths from the last prejudicial activity expires, no order of detention can be passed. The legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under Section 3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is W.P.(Crl) No.494/2015 9 inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation in order to enable the detaining authority to pass an order of detention). In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention.” 5. In view of the principles laid down in W.P.(Crl.) No.493 of 2015, the contentions put forward before us by the W.P.(Crl) No.494/2015 10 learned counsel for the petitioner are unsustainable. For the aforesaid reasons, the Writ Petition is dismissed. **K.T.SANKARAN** # **JUDGE** **K.P.JYOTHINDRANATH JUDGE** csl