Mumthas 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 TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 WP(CRL.) NO. 48 OF 2023** **PETITIONER:** MUMTHAS AGED 48 YEARS W/O. TAJUDEEN, BISMINA MANZIL, MANJADITHARA, PALLICKAL (PO), KAYAMKULAM, PIN - 690503 BY ADVS.K.SASIKUMAR S.ARAVIND P.S.RAGHUKUMAR 1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME & VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 2 THE DISTRICT COLLECTOR/ THE DISTRICT MAGISTRATE ALAPPUZHA, PIN - 688001 3 THE DISTRICT POLICE CHIEF ALAPPUZHA, PIN - 688001 4 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026 5 STATION HOUSE OFFICER VALLIKUNNAM POLICE STATION, VALLIKUNNAM P.O., MAVELIKARA, ALAPPUZHA, PIN - 690501 6 THE SUPERINTENDENT CENTRAL PRISON, VIYYUR, THRISSUR, PIN - 680010 ## **RESPONDENTS:** ## **OTHER PRESENT:** SRI. K.A.ANAS-GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 04.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ALEXANDER THOMAS & C. JAYACHANDRAN, JJ. =====================================** W.P.(Crl.)No. 48 of 2023 **====================================** Dated this the 04[th] day of April, 2023 ## **JUDGMENT** ## C. Jayachandran, J. The mother of the detenu is the petitioner in the captioned writ petition, which is filed seeking issuance of a writ of habeas corpus, the relief being premised on the contention that Ext.P1 detention order of the second respondent District Collector issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P)A' for short) is illegal and violative of the statutory provisions. Ext.P1 order directed the petitioner's son to be kept in preventive detention, which is specified to be for a period of six months with effect from the date of detention, as per Ext.P2 order issued by the Government of Kerala. **2.** Heard Sri.K.Sasikumar, learned counsel for the petitioner and Sri.K.A.Anas, learned Government Pleader attached to the Advocate General's Office, on behalf of the respondents. Perused the records. W.P.(Crl.)No.48 of 2023 2 **3.** As many as seven crimes were taken stock of to put the petitioner' son under preventive detention, the details of which are indicated in the tabular statement shown here below:- |**Sl.**<br>**No.**|**Crime Number**|**Police** **Station**|**Offences**| |---|---|---|---| |1|884/2016|Kurathikkad Police<br>Station|394 & 34 IPC| |2|863/2016|Vallikunnam Police<br>Station|511, 394 & 34 IPC| |3|1693/2017|Kurathikkad Police<br>Station|143, 147,149,<br>294(b), 323, 341,<br>506(i) IPC| |4|1286/2018|Vallikkunam Police<br>Station|20(b)(ii)B of<br>NDPS Act| |5|90/2021|Vallikkunam Police<br>Station|20(b)(ii)C & 27A<br>of NDPS Act| |6|448/2021|Perumbavoor Police<br>Station|20(b)II (A) & 29 of<br>NDPS Act| |7|507/2022|Oachira Police Station|324, 427, 308,<br>365, etc. of I.P.C.| **4.** The dates and events - relevant in the context of the statutory provisions of KAA(P)A - which culminated in Ext.P1 detention order are as follows: |Sl.No.|Date<br>|Event| |---|---|---| |1|17.10.2022|Date of order of detention| |2|20.10.2022|Execution of the order of detention| |3|3.11.2022|Date of order of approval by the| |||Government| |4|4.11.2022|Date of Reference by the Government to| |||the Advisory Board| W.P.(Crl.)No.48 of 2023 3 5 13.12.2022 Date of Confirmation of the Detention Order by the Government, after considering the opinion of the Advisory Board. **5.** To challenge Ext.P1 detention order, learned counsel for the petitioner essentially argued on the delay of three days in effecting arrest, pursuant to Ext.P1 order. While Ext.P1 order of detention was issued on 17.10.2022, the detenu was arrested only on 20.10.2022. Two fold arguments were addressed based on the above delay. Firstly, the delay of three days in arresting the detenu was purposeful, illegal and arbitrary, which vitiates the proceedings. Secondly, it was contended that, reckoned from the date of Ext.P1 order, the mandate in Section 3(3) of KAA(P)A stands violated. Section 3(3) stipulates that the authorised officer under Section 3(2) shall forthwith report the factum of an order under Section 3(1) to the Government and that such order shall not remain in force for a period more than 12 days, unless the same has been approved by the Government. In the instant case, the Government approved Ext.P1 order only on 3.11.2022, which is beyond the period of 12 days stipulated in Section 3(3), reckoned from 17.10.2022, the date of Ext.P1 order, is the argument advanced. W.P.(Crl.)No.48 of 2023 4 **6.** As regards the first limb of the argument, we are of the opinion that three days delay in executing arrest pursuant to Ext.P1 order cannot cause any legal prejudice, whatsoever, to the petitioner's son. The petitioner's contention that the delay vitiates the entire proceedings is wholly bereft of any bonafides. More over, the delay of three days is explained by pointing out that the detenu was under judicial custody in connection with Crime No.507/2022 of Oachira Police Station - within the jurisdictional limits of the Judicial First Class Magistrate Court, Karunagappally - when Ext.P1 order was passed on 17.10.2022. Therefore, execution of Ext.P1 by arresting of the petitioner's son could have been made only after obtaining necessary permission from the Magistrate Court concerned, which requirement was served vide orders in C.M.P.No.3341/2022 in the above Crime dated 19.10.2022. Immediately thereafter, the arrest was recorded on 20.10.2022. We are satisfied that the delay of three days is properly explained, in support whereof, we garner strength from the dictum laid down by the Hon'ble Supreme Court in **Licil Antony v. State of Kerala** [(2014) 11 SCC 326] and a Bench decision of this Court in **Anju P.Anil Kumar v. State of Kerala** [W.P.(Crl.)No.474/2021]. W.P.(Crl.)No.48 of 2023 5 **7.** We also reject the second limb of the argument, in as much as, the period of 12 days is to be reckoned from the date of detention; and not from the date of order of detention. In the instant case, the actual date of detention/arrest is 20.12.2022, although the date of Ext.P1 detention order was on 17.10.2022. Section 3(3) also exclude public holidays in reckoning the above period of 12 days. As pointed out in the counter affidavit filed by the 1[st] respondent, we notice that 23.10.2022 and 30.10.2022 were Sundays and 24.11.2022 was a public holiday on account of Deepavali. Thus, counting from 20.10.2022 (the date of arrest/detention) and excluding the public holidays, the approval of Ext.P1 order by the Government on 3.11.2022 is well within the stipulated period of 12 days. **8.** Before dealing with the other contentions raised in the writ petition, we notice that the facts as available against the detenu would squarely answer the requirements of a 'known goonda', as defined in Section 2(o) of the KAA(P)A. A perusal of the seven crimes reckoned for the present purpose, as also, the nature of the offences would establish that the detenu is a person who indulges in anti-social activity, besides promoting illegal activities, harmful for the maintenance of the public order. The crimes, which were W.P.(Crl.)No.48 of 2023 6 considered, were allegedly committed within the statutory span of seven years preceding the date of order of detention. As against the requirements of two instances where the detenu has to be found on investigation to have committed an act within the meaning of the term goonda, the detenu was found so in respect of as many as seven instances within the statutory period. We cannot but approve the objective satisfaction of the Detaining Authority as regards the requirements of Section 3 of the KAA(P)A. The Authorized Officer/Detaining Authority was duly reported by the District Police Chief, Alappuzha District as per letter dated 10.8.2022 about the activities of the detenu, as also, the crimes in which he is allegedly involved. After referring to the various facts, including the nature of the crimes, the Detaining Authority arrived at the subjective satisfaction as regards the requirement to detain the detenu, which satisfaction is seen expressed in paragraph nos.54, 55, 56, 57, 58 and 59 of Ext.P1 order. We find no infirmity, much less any illegality, with Ext.P1 order of detention. **9.** For the sake of completion, we will quickly refer to the other grounds raised in the writ petition. We find little merits in the ground that there is no rational nexus between the last prejudicial W.P.(Crl.)No.48 of 2023 7 activity and Ext.P1 order, since there is a delay of three months between the two. The last prejudicial activity/crime was allegedly committed on 13.7.2022 (Crime No.507/2022 of Oachira Police Station). He was arrested in this crime on 2.9.2022. The Sponsoring Authority submitted report on 10.8.2022 and Ext.P1 order was issued on 17.10.2022. We cannot but notice that an order under Section 3 of KAA(P)A is of a serious nature, entailing severe consequences, which cannot be resorted to without meticulously complying with the procedural safeguards, consuming reasonable time. We are not of the opinion that the time span of three months from the last prejudicial activity and Ext.P1 order is fatal, especially when a reasonable explanation for the delay is forthcoming. **10.** Another ground raised emanates from the fact that the detnue was already in judicial custody when Ext.P1 order was passed, which aspect was not considered by the Detaining Authority. Here again, we find little force. The detenu is allegedly involved in as many as seven crimes during the relevant period. Invariably he was enlarged on bail on every crime, with conditions duly stipulated to prevent the detenu from indulging in further crimes. The very factum of successive crimes including the seventh one would only expatiate that the W.P.(Crl.)No.48 of 2023 8 conditions stipulated in the bail orders, or for that matter the judicial custody of the detenu in connection with the particular crime, was not sufficient to curb his criminal propensity. **11.** Another ground is that the cases registered would not qualify for the purpose of a detention under the KAA(P)A in as much as the complaints were initiated by the police officers. It was urged that Crime Nos.1286/2018 and 90/2021, both of Vallikkunnam Police Station, were initiated on complaints preferred by police officers and hence not liable to be reckoned. We find no force in the said contention, since the proviso to Section 2(o) specifically carves out situations where cases are initiated on the report of a police officer consequent to seizure of narcotic drugs, psychotropic substances, etc. in the presence of witnesses. Crime Nos.1286/2018 and 90/2021, both were registered under the relevant provisions of the NDPS Act, which brings the facts within the ambit of the proviso to Section 2(o). The contention is therefore rejected. **12.** The last ground pertaining to Crime No.507/2022, on the premise that the final report in the said crime has not been filed, is squarely in the teeth of the judgment of a Full Bench of this Court in W.P.(Crl.)No.48 of 2023 9 **Stenny Aleyamma Saju v. State of Kerala and others** [2017 (3) KLT 676], wherefore the said contention is also liable to be rejected. In the light of the above discussion, we find that Ext.P1 detention order is legal and valid and we confirm the same. Consequently, we dismiss the Writ Petition, refusing the relief of issuance of a writ of habeas corpus. _Sd/-_ **ALEXANDER THOMAS, JUDGE** Sd/- **C. JAYACHANDRAN** **JUDGE** skj W.P.(Crl.)No.48 of 2023 10 ## **APPENDIX OF WP(CRL.) 48/2023** PETITIONER'S EXHIBITS Exhibit P1 TRUE ORIGINAL SET OF THE ORDER NO. SC6 - 362520/2022 DATED 17-10-2022 OF THE 2ND RESPONDENT ALONG WITH THE ENCLOSED RECORDS IN THE CONDITION IN WHICH IT WAS SERVED ON THE PETITIONER Exhibit P2 A TRUE COPY OF THE ORDER DATED 13-122022 ISSUED BY THE 1ST RESPONDENT Exhibit P3 A TRUE COPY OF THE ORDER DATED 15-122022 PASSED BY THE 1ST RESPONDENT ON THE REPRESENTATION SUBMITTED BY THE PETITIONER