Muhammed Haris v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 12[TH] DAY OF APRIL 2023 / 22ND CHAITHRA, 1945** **WP(CRL.) NO. 1255 OF 2022** **PETITIONER:** MUHAMMED HARIS AGED 38 YEARS S/O HABEEBKUTTY, RAFA MANZIL, KUNNICODE P.O, VILAKKUDY, KOLLAM- 691508. BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA SADIK ISMAYIL ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT OF KERALA (HOME DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE DISTRICT MAGISTRATE, KOLLAM COLLECTORATE, KOLLAM DISTRICT - 691 013. 3 THE DISTRICT POLICE CHIEF, KOLLAM, O/O THE DISTRICT POLICE CHIEF, KOLLAM-691 013. 4 THE SUPERINTENDENT, CENTRAL PRISON, VIYYOOR, THRISSUR - 680 010. 5 THE INSPECTOR OF POLICE, STATION HOUSE OFFICER, KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT - 691 506. ## **OTHER PRESENT:** SRI.K.A.ANAS- GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. =======================================** W.P.(Crl.)No.1255 of 2022 **=======================================** Dated this the 12[th] day of April, 2023 ## **JUDGMENT** ## C. Jayachandran, J. The petitioner, the brother of the detenu, challenges Ext.P15 order of the Government, confirming Ext.P13 Order of detention issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P)A' for short), on very many grounds. However, we notice that the period of detention of 6 months, vide Ext.P15, has already expired and the matter has practically become infructuous. However, Smt.Saipooja, learned counsel for the petitioner submitted that the legal validity of Ext.P13/Ext.P15 order of detention is still relevant by virtue of Section 13 of the KAA(P)A, in the context of the term of detention, in case a second order for preventive detention is found necessary against the detenu. Within the limited compass of that submission, we have heard Smt.Saipooja, learned counsel for the petitioner and Sri.Sri.K.A.Anas, learned Government Pleader attached to the Office of the Advocate General, on behalf of the respondents. Perused the records. **2.** The essential ground which was urged before us is the delay in initiating proceedings under the KAA(P)A, reckoned from the date of W.P.(Crl.)No.1255 of 2022 2 the last prejudicial activity. It was pointed out, vide Ground-G to the Writ Petition, that the date of the alleged last prejudicial activity was on 23.4.2022, whereas the proposal for initiating proceedings under the KAA(P)A was made only on 11.7.2022, thus causing a delay of more than 2 months and 18 days. Although it was not specifically urged before us, we have also considered the delay between the date of the last prejudicial activity (23.4.2022) and the date of Ext.P13 detention order (14.9.2022), where the delay is 4 months and 22 days. **3.** Having bestowed our attention to the said contention, we are of the opinion that the delay of 2 months and 18 days between the last prejudicial activity and the date of initiation of proceedings under the KAA(P)A is not fatal. Before addressing the merits of the said contention, we notice that as many as 10 crimes within the statutory period were considered by the Detaining Authority in passing Ext.P13 order of detention, the details of which are as indicated in the tabular statement given here below:- |**Sl.**<br>**No.**|**Crime Number**|**Police** **Station**|**Offences**| |---|---|---|---| |1|248/2017|Kottarakkara Police<br>Station|294(b), 452, 324,<br>323, 326, 506(ii),<br>354, 427, 34 of the<br>IPC.| |2|1798/2018|Kottarakkara Police<br>Station|323, 324, 294(b)<br>r/w 34 of the IPC| W.P.(Crl.)No.1255 of 2022 3 |3|2218/2018|Kottarakkara Police<br>Station|294(b), 323,<br>506(ii) of the IPC| |---|---|---|---| |4|2538/2018|Kottarakkara Police<br>Station|294(b)of the IPC &<br>117(e) of the KP<br>Act| |5|2156/2018|Kunnikode Police Station|143, 147, 148,<br>294(b), 323, 324,<br>506(ii), 395 & 149<br>of the IPC.| |6|4161/2020|Kottarakkara Police<br>Station|294(b), 323, 324,<br>34 of the IPC| |7|1088/2022|Kottarakkara Police<br>Station|406, 420, 34 of the<br>I.P.C.| |8|1214/2021|Kottarakkara Police<br>Station|294(b), 341, 323,<br>506(ii), 34 of the<br>IPC| |9|2388/2021|Kottarakkara Police<br>Station|120(b), 143, 147,<br>148, 294(b), 323,<br>324, 307, 302 r/w<br>149 of the IPC| |10|956/2022|Kottarakkara Police<br>Station|341, 294(b),<br>506(i), 34 of the<br>IPC| **4.** Coming back to the contention of delay, we notice that the last out of the 10 crimes considered, namely Crime No.956/2022, Kottarakkara Police Station, was allegedly committed on 23.4.2022. The F.I.R. was registered on the next day, i.e., on 24.4.2022 and the detenu/accused was arrested on 28.4.2022. Having regard to the nature of the offences alleged, he was granted bail by the S.H.O. concerned and released on the same day. The final report in the said crime was filed on 30.4.2022. On 25.5.2022, the S.H.O, Kottarakkara W.P.(Crl.)No.1255 of 2022 4 preferred preliminary report to the Dy.S.P. concerned to initiate proceedings under the KAA(P)A against the detenu. On 02.06.2022, the Dy.S.P. preferred his report to the District Police Chief and on 11.7.2022, the District Police Chief forwarded his recommendation to the District Magistrate to initiate proceedings against the detenu under the KAA(P)A. **5.** In the meanwhile, the detenu got himself involved in yet another crime of the same Police Station, registered as Crime No.1088/2022. Although the date of occurrence of the said crime was on 1.7.2021, the same was reported and F.I.R. registered only on 11.5.2022. The accused/detenu was absconding and the final report in the said crime was filed on 17.5.2022. **6.** The District Magistrate sought for a clarification to the recommendation of the District Police Chief dated 11.7.2022, in answer to which, the District Police Chief gave an additional report on 26.8.2022, including the details of the subsequent crime, as also, the details of bail granted in the last crime, i.e., Crime No.956/2022. After perusing and considering the recommendation and the additional report of the District Police Chief, the District Magistrate issued Ext.P13 order of detention on 14.9.2022. W.P.(Crl.)No.1255 of 2022 5 **7.** We cannot find that the delay caused in the above referred facts and circumstances is inordinate or fatal. As regards the specific contention of the delay between the date of the last prejudicial activity (23.4.2022) and the date of initiation of proceedings under the KAA(P)A (11.7.2022) - as espoused in ground-G to the writ petition - , we are of the opinion that the delay of 2 months and 18 days is quite justifiable. In respect of the said last crime reckoned for the purpose of preventive detention, the accused/detenu was arrested on 28.4.2022 and the final report filed on 30.4.2022. The preliminary report of the S.H.O., Kottarakkara addressed to the Dy.S.P. was preferred on 25.5.2022, where we notice a delay of 25 days. The Dy.S.P. acted swiftly to prefer his report to the District Police Chief on 02.06.2022, that is to say, within 7 days. The District Police Chief took more than a month to forward his recommendation to the District Magistrate. The additional report was forwarded on 26.8.2022 and Ext.P13 detention order was issued on 14.9.2022. Here, we notice that initiating a proceeding for preventive detention under the KAA(P)A is a very serious and responsible affair, which requires collection of several material inputs and consideration of the same, be it at the instance of the S.H.O in preferring the preliminary W.P.(Crl.)No.1255 of 2022 6 report, or for the District Police Chief in forwarding the recommendation to the District Magistrate, or for that matter, for the District Magistrate to ultimately issue the detention order. The various data included in the preliminary report, as confirmed by the Dy.S.P. in his report, has to be verified and cross-checked by the District Police Chief, and more importantly by the Detaining Authority, the District Magistrate. The Detaining Authority has to arrive at an objective satisfaction that the proposed detenu answers the definition of a 'known rowdy' or a 'known goonda' in terms of the KAA(P)A, besides arriving at the subjective satisfaction as regards the compelling necessity to detain the proposed detenu on account of his criminal propensity in the larger public interest. As held by a five Judge Bench of the Hon'ble Supreme Court in **Haradhan Saha v. The State of West Bengal and others** [(1975) 3 SCC 198], _a detention order is a precautionary measure, based on a reasonable prognosis of the future behaviour of a person based on his past conduct in the light of the surrounding circumstances_ (see paragraph no.34, end). In **Sushanta Kumar Banik v. State of Tripura and Others** [2022 SCC OnLine SC 1333], the Honourable Supreme Court held on the attendant facts that the “live and proximate link” between W.P.(Crl.)No.1255 of 2022 7 the grounds of detention and the purpose of detention stood snapped in arresting the detenue; and more importantly, the delay has not been explained. In that case, the proposal to take steps for preventive detention was taken on 28.06.2021, which was forwarded by the Assistant Inspector General of Police on 14.07.2021. The detention order was dated 12.11.2021 and there was no explanation as to why it took almost 5 months for the detaining authority to pass the order of preventive detention. It was in such circumstances that the Honourable Supreme Court held that the live and proximate link stood snapped. The facts at hand are quite distinguishable. As already indicated, the delay between the date of initiation of proceedings and the date of detention order is 3 months and 20 days, which stands explained, as already found. Moreover, the registration of a crime, subsequent to the last crime reckoned for the purpose of detention, would only testify that the live link between the last prejudicial activity and the purpose of detention is not snapped at all. **8.** We therefore hold that the alleged delay by and between the last crime and the date of initiation of proceedings under the KAA(P)A, or for that matter, the date of Ext.P13 detention order, will not vitiate the detention order. We are not considering the other grounds raised in W.P.(Crl.)No.1255 of 2022 8 the writ petition, in as much as the period of detention is already over, as also, for the reason that the specific contention which was urged and pressed before us is with respect to the delay, which we have already dealt with. In the result, this writ petition would stand dismissed. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN** **JUDGE** skj W.P.(Crl.)No.1255 of 2022 9 ## **APPENDIX OF WP(CRL.) 1255/2022** |PETITIONER'S EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE CUSTODY MEMO SUBMITTED BY THE| ||5TH RESPONDENT, INSPECTOR OF POLICE| ||KOTTARAKKARA IN RESPECT OF DETENU| |Exhibit P2|TRUE COPY OF THE FIR IN CRIME NO:248/2017 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P3|TRUE COPY OF THE FIR IN CRIME NO:1798/2018 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P4|TRUE COPY OF THE FIR IN CRIME NO: 2218/2018 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P5|TRUE COPY OF THE FIR IN CRIME NO:2538/2018 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P6|TRUE COPY OF THE FIR IN CRIME NO: 2156/2018 OF| ||KUNNIKODE POLICE STATION| |Exhibit P7|TRUE COPY OF THE FIR IN CRIME NO: 4161/2020 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P8|TRUE COPY OF THE FIR IN CRIME NO: 1088/2022 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P9|TRUE COPY OF THE FIR IN CRIME NO: 1214/2021 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit10|TRUE COPY OF THE FIR IN CRIME NO: 2388/2021 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P11|TRUE COPY OF THE FIR IN CRIME NO: 956/2022 OF| ||KOTTARAKKARA POLICE STATION| |Exhibit P12|TRUE COPY OF THE REPORT DATED 04-05-2022| ||SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND| ||RESPONDENT| |Exhibit P13|TRUE COPY OF THE ORDER NO.DCKLM/9035/2022-M16| ||DATED 14-09-2022 OF THE 2ND RESPONDENT| |Exhibit P14|TRUE COPY OF THE REPRESENTATION SUBMITTED BY| ||THE DETENU BEFORE THE 1ST RESPONDENT| |Exhibit P15|TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT| ||BY ORDER NO.G.O(Rt)NO.3207/2022/HOME| ||DATED 15-11-2022|