Laisamma v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 6[TH] DAY OF DECEMBER 2023 / 15TH AGRAHAYANA, 1945** **WP(CRL.) NO. 754 OF 2023** ## **PETITIONER/S:** LAISAMMA AGED 53 YEARS KALLUVETTUKUZHIYIL HOUSE, PALLIMALA BHAGAM, KATTACHIRA P.O KIZHAKKUMBHAGAM KARA, ETTUMANNOR VILLAGE, KOTTAYAM DISTRICT., PIN - 686572 BY ADV AJEESH M UMMER ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE DISTRICT COLLECTORATE, COLLECTORATE P.O, KOTTAYAM., PIN - 686002 3 THE DISTRICT POLICE CHIEF DISTRICT POLICE OFFICE, COLLECTORATE P O, KOTTAYAM., PIN - 686002 4 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,VIVEKANANDA NAGAR, ELAMAKKARA., PIN - 682026 WP(Crl.) 754/2023 ..2.. 5 THE SUPERINTENDENT OF JAIL CENTRAL JAIL, KANNUR., PIN - 670004 BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 06.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.) 754/2023 ..3.. ## **JUDGMENT** ## SHOBA ANNAMMA EAPEN, J. The mother of the _detenu_ has come up before this Court challenging Ext.P1 order of detention passed by the second respondent under the Kerala Anti-Social Activities Prevention Act, 2007 [hereinafter referred to as, “the KAA(P)A”]. 2. The detention order was passed on 28.11.2022 on the basis of a preliminary report submitted by the third respondent under the provisions of the KAA(P)A to the second respondent, reporting that the _detenu_ is a known rowdy involved in anti-social activities and he has to be detained. Out of 13 cases registered against him, the following ten cases were considered by the third respondent for initiating preventive detention; |Sl.<br>No.|Police<br>Station|Crime No. &<br>Section|Date of<br>Occurrence|Court No. &<br>Court<br>Name/Present<br>Stage| |---|---|---|---|---| |1|Ettumanoor|1404/2016<br>u/s.294(b), 323,|14/09/16|CC 219/16<br>JFCM,| WP(Crl.) 754/2023 ..4.. |||324, 427 & 506(ii)<br>r/w 34 IPC||Ettumanoor| |---|---|---|---|---| |2|Ettumanoor|223/2017<br>u/s.294(b), 341,<br>323, 324, 326 &<br>308 r/w 34 IPC|05/01/17|SC 74/2018<br>Addl.Sessions<br>Court-V,<br>Kottayam| |3|Ettumanoor|562/2017 u/s.394<br>r/w 34 IPC|25/03/17|CC 1065/2017<br>JFCM,<br>Ettumanoor| |4|Ettumanoor|572/2019<br>u/s.294(b), 341 &<br>324 IPC|25/03/17|CC 371/2019<br>JFCM,<br>Ettumanoor| |5|Ettumanoor|879/2019 u/s.341,<br>393, 294(b),<br>506(ii) & 324 r/w<br>34 IPC|19/05/19|CC 495/2019<br>JFCM,<br>Ettumanoor| |6|Ettumanoor|34/2020 u/s.447,<br>294(b), 341, 323,<br>506(ii) & 427 r/w<br>34 IPC|05/01/20|CC 249/2020<br>JFCM,<br>Ettumanoor| |7|Ettumanoor|839/2020<br>u/s.294(b), 452,<br>427 & 324 r/w 34<br>IPC|07/07/20|CC 772/2020<br>JFCM,<br>Ettumanoor| |8|Ettumanoor|1247/2020<br>u/s.294(b), 341,<br>307, 323 & 324<br>r/w 34 IPC|01/11/20|SC 22/2021<br>Addl.Sessions<br>Court-II,<br>Kottayam| |9|Ettumanoor|1321/2021<br>u/s.341, 294(b),<br>323, 324, 328 &<br>308 r/w 34 IPC|12/07/21|CP 51/2021<br>JFCM,<br>Ettumanoor| WP(Crl.) 754/2023 ..5.. 10 Ettumanoor 1330/2022 03/08/22 CP 52/2022 u/s.294(b), 323, JFCM, 506(i), 427 & 308 Ettumanoor r/w 34 3. The events with regard to the preventive detention of the _detenu_ are as follows; a) Date of order of detention 28.11.2022 b) Execution of the order 07.12.2022 of detention c) Date of Approval by Govt. 20.12.2023 d) Date of reference by Govt. 21.12.2022 to the Advisory Board 4. The learned counsel for the petitioner submitted that the _detenu_ was already under judicial custody in three crimes and the detaining authority was not even aware of the judicial custody of the _detenu_ in Crime No.1329/2022 of the Ettumanoor Police Station. It was further submitted that there was no chance of the _detenu_ being released on bail and the second respondent failed to consider the aspect that the _detenu_ being under judicial custody, there is no WP(Crl.) 754/2023 **==> picture [31 x 8] intentionally omitted <==** point in apprehending any breach of public order; and therefore, Ext.P1 detention order is illegal. According to the learned counsel, the detention order was passed without any subjective satisfaction. The learned counsel relied on the decisions in **Sujitha v. State of Kerala & Others** [MANU/KE/2158/2015], **Megha Oshin v. State of Kerala** [2023 (2) KHC 422], **Rekha v. State of Tamil Nadu Tr. Sec. To Govert. & Another** [2011 KHC 4343] **and Dharmendra Suganchand Chelawat &** **Another v. Union of India & Others** [1990 KHC 748], in support of his arguments. 5. The first respondent filed a counter affidavit, wherein it was contended that the activities of the _detenu_ were in close surveillance of the police by opening Rowdy History sheet as per order dated 01.03.2017. According to the respondents, in order to control his criminal activities, Cr.P.C. 107 proceedings were initiated and bond for good conduct was executed on 06.12.2017, however, he was further WP(Crl.) 754/2023 **==> picture [31 x 8] intentionally omitted <==** indulged in antisocial activities and continuously committed crimes even after release on bail. The sponsoring authority furnished the details of involvement of the _detenu_ in 13 cases from 2016 onwards, out of which ten were reckoned by the detaining authority. All those ten crimes were under trial before the respective courts, which were committed within a period of seven years immediately preceding the detention order. There was a previous detention order dated 20.07.2018 under Section 3(1) of the KAA(P)A against the _detenu,_ pursuant to which he was under preventive detention for six months from 24.07.2018 to 24.01.2019. Even after release from the said preventive detention, he again involved in seven criminal cases. Hence, according to the respondents, the only available option before them is to take action under Section 3(1) r/w Section 13(2)(i) of the KAA(P)A. It is pointed out that the live link between the last prejudicial activity and the order of detention WP(Crl.) 754/2023 **==> picture [31 x 8] intentionally omitted <==** was not snapped or broken and it is a settled principle of law that the detention of an accused person in a criminal prosecution, who is already in custody, is permissible if there is substantive satisfaction on the part of the detaining authority that there is chance of the accused being released on bail and if so, he will continue with his antisocial activities. In order to support the contentions, the respondents relied on a decision of the apex court in **Union of India** v. **Dimple Happy Dhakad** [(2019) 20 SCC 609]. It is further contended that the detaining authority was aware of the fact that the _detenu_ was in judicial custody when the detention order was passed and since there was every chance to get bail from the court concerned, the detention order was passed to prevent the likelihood of prejudice to maintenance of law and order to the community. It is further contended that the time taken for passing the detention order from the last prejudicial activity is three months and 25 WP(Crl.) 754/2023 **==> picture [31 x 8] intentionally omitted <==** days and the detention order explains regarding the live link. On the basis of the materials placed by the sponsoring authority, to safeguard the interest of society and to maintain public order, the impugned order was passed and hence, according to the respondents, the averments made by the petitioner are devoid of any merit. 6. On a perusal of Ext.P1 detention order, it is seen that from 2016 onwards, the petitioner was involved in 13 crimes; i.e., two in 2016, two in 2017, two in 2019, four in 2020, one in 2021 and two in 2022; out of which ten were considered while passing the detention order. Paragraph 15 of the detention order reflects that the authority was aware of the fact that the _detenu_ was under judicial custody since 04.08.2022. It was specifically stated therein that there was every chance of getting bail from the court concerned. It is discernible that the detaining authority has scrutinized his history sheet and it was on being satisfied that he is to be WP(Crl.) 754/2023 **==> picture [37 x 8] intentionally omitted <==** prevented from pursuing such activities, the detention order was passed. 7. It is the specific case of the respondents that there was previous detention order dated 20.07.2018, whereby he was under preventive detention for six months and after release from the previous detention, he again involved in seven cases. In **Union of India** v. **Paul Manikkam & Another** [(2003) 8 SCC 342], it was held that if the detaining authority is aware of the fact that the _detenu_ has been in custody and the detaining authority is reasonably satisfied with cogent materials that there is likelihood of his release and in view of his antecedent activities, he must be detained to prevent from indulging in such prejudicial activities, the detention order can validly be made. 8. The detaining authority was aware of the judicial custody of the _detenu_ in connection with Crime No.1329/2022 of the Ettumanoor Police WP(Crl.) 754/2023 **==> picture [37 x 8] intentionally omitted <==** Station and the co-accused in the said crime was released on bail and hence, the detaining authority was satisfied that there is likelihood of the _detenu_ being released on bail. 9. The last prejudicial activity of the _detenu_ was on 03.08.2022; he was arrested on 04.08.2022; the proposal for initiating preventive detention was on 22.10.2022; and the detention order was issued on 28.11.2022. Hence, the time taken from the date of last prejudicial activity to the issuance of the detention order is three months and 25 days, which has been properly explained stating that the delay occurred for obtaining permission from the court concerned to arrest him. Though only ten cases were considered by the sponsoring authority for issuing the detention order, the impact on the society at large will be relevant when it relates to the crimes committed by the _detenu._ The decisions relied on by the learned counsel for the petitioner have no relevance in the case in WP(Crl.) 754/2023 **==> picture [37 x 8] intentionally omitted <==** hand since the detaining authority was already aware of the judicial custody of the _detenu._ The detaining authority has passed the detention order after considering the criminal antecedents of the _detenu_ and after arriving at objective and subjective satisfaction. Hence, it cannot be said that Ext.P1 order is illegal, warranting interference. Therefore, the challenge against Ext.P1 fails and accordingly, the WP(Crl.) stands dismissed. ## **Sd/-** ## **A. MUHAMED MUSTAQUE** ## **JUDGE** **Sd/-** ## **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- WP(Crl.) 754/2023 ..13.. ## **APPENDIX OF WP(CRL.) 754/2023** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE ORDER NO DCKTM/11291/H1/2022 DATED 28.11.2022 ALONG WITH DOCUMENTS RECEIVED AS SUCH Exhibit P2 A TRUE COPY OF THE FIR IN CRIME 1329/2022 OF ETTUMANOOR POLICE STATION DATED 03.08.2022.