## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC**
**& THE HONOURABLE MR. JUSTICE P.D.RAJAN**
## **THURSDAY, THE 28TH DAY OF NOVEMBER 2013/7TH AGRAHAYANA, 1935**
**WP(Crl.).No. 463 of 2013 (S) -----------------------------**
## **PETITIONER(S):**
**--------------------------**
**NABEEZA AGED 50 YEARS W/O.ISMAIL, KADAVIL HOUSE, EROOR.P.O. THRIPUNITHURA, ERNAKULAM DISTRICT.**
## **BY ADV. SMT.ANITHA MATHAI MUTHIRENTHY**
## **RESPONDENT(S):**
**----------------------------**
**1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HOME DEPARTMENT, THIRUVANANTHAPURAM.695 001.**
**2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE ERNAKULAM. 682 030.**
**3. THE DISTRICT POLICE CHIEF KOCHI CITY. 682 011.**
- **R1-R3 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED**
**THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28-112013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(Crl.).No. 463 of 2013 (S)**
**-----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS -------------------------------------**
**P1- TRUE COPY OF THE ORDER DATED 26.06.2013 BY THE SECOND RESPONDENT. P2- TRUE COPY OF THE REPORT DATED 30.03.2013 BY THE THIRD RESPONDENT. P3- TRUE COPY OF THE ORDER DATED 09.09.2013 BY THE FIRST RESPONDENT.**
**RESPONDENT(S)' EXHIBITS NIL**
**---------------------------------------**
**//True Copy//**
**PA TO JUDGE**
**Rp**
## **ANTONY DOMINIC & P.D.RAJAN, JJ. ======================== W.P.(Crl.) No. 463 OF 2013 =======================**
## **Dated this the 28[th] day of November, 2013**
## **J U D G M E N T**
## Antony Dominic, J.
1. Petitioner is the mother of Shameer alias Mortuary Shameer (hereinafter referred to as the 'detenu' for short). In this writ petition, she is seeking to challenge Ext.P1 order of detention issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act' for short). By that order, the 2[nd] respondent has ordered the detention of the detenu.
2. From the contents of Ext.P1 order, it would appear that the 3[rd] respondent, the sponsoring authority, submitted reports dated 30/3/2013, 9/4/2013 and 22/5/2013 to the 2[nd] respondent, the detaining authority. By those reports, the 2[nd] respondent has informed that by order No.M7-26662/7(40) dated 24/12/2007, the detenu was kept under preventive detention and that even on the release after expiry of the period of detention, the detenu continued his anti-social activities. It was stated that he was the accused in Crime
## **W.P.(Crl.) No.463/13**
**: 2 :**
Nos.1350/08 and 523/09 of the Palarivattom Police Station, Crime No.671/10 of the Hill Palace Police Station, Crime No.1211/11 of the Palarivattom Police Station and Crime No.1740/12 of the Thrikkakkara Police Station, all involving various offences of Indian Penal Code included in Section 2(t) of the Act. On this basis, contending that it is necessary to detain the detenu, the 2[nd] respondent sought declaration that the detenu is a ' _known rowdy_ ' as provided under Section 2(p) and that therefore, he should be kept under detention under Section 3 of the Act.
3. Accordingly, action was initiated and the 2[nd] respondent issued Ext.P1 order dated 26/6/13 classifying the detenu as a ' _known rowdy_ ' and ordered his detention. For this purpose, he has relied on the aforesaid reports and the details of the cases and accordingly, he concluded that the detention of the detenu was essential for the maintenance of the public order. On the basis of Ext.P1, the detenu was arrested on 3/7/13 and is undergoing detention. Subsequently, the Government approved the order of detention by its order dated 16/7/13 and based on the report of the Advisory Board, confirmed the detention by its order
## **W.P.(Crl.) No.463/13**
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dated 9/9/13. It is in these circumstances, this writ petition has been filed.
4. The contention raised by the learned counsel for the petitioner is that the last prejudicial activity that is the subject matter of Crime No.1740/12 of Thrikkakkara Police Station was on 6/11/12 and that Ext.P1 detention order was passed only on 26/6/13. According to the learned counsel, there is an unexplained and inordinate delay of almost eight months and that as a result, the live link between the last prejudicial activity and the purpose of detention is snapped rendering the order of detention illegal and unconstitutional. In support of this contention, learned counsel relied on the Division Bench judgment of this Court in _**Jimesh Jose v. State of Kerala and Others**_ (2013(1) KHC 49), where an order of detention was held invalid on the ground that there was unexplained delay of 4½ months.
5. However, referring to the affidavit filed by the 2[nd] respondent, learned Additional Director General of Prosecution contended that the delay has been satisfactorily explained and according to him, even if there is delay in issuing an order of detention,
## **W.P.(Crl.) No.463/13**
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that by itself will not render the detention order illegal unless the delay has been satisfactorily explained. Learned Additional Director General of Prosecution also placed reliance on the judgment of this Court in _**Praseedha Shiju v. State of Kerala**_ (2013(2) KLT 838).
6. We have considered the rival submissions made.
7. Having gone through the judgments cited at the Bar by both sides, we are inclined to think that Courts have always insisted on the requirement that there should be a live link between the prejudicial activity of the detenu and the purpose of detention and that due to inordinate delay, that live link is lost, rendering the order of detention illegal. It has also been laid down that even if there is delay and if the delay has been satisfactorily explained, the order will not be held invalid.
8. In so far as this case is concerned, admittedly the last prejudicial activity was on 6/11/12 and the order of detention was issued only on 26/6/13. In other words, there admittedly has occurred a delay and the question is whether any satisfactory explanation has been offered by the respondents. The only explanation offered is by the 3[rd] respondent in para 8
**W.P.(Crl.) No.463/13**
**: 5 :**
## of his counter affidavit, where he has stated thus;
_In Crime No.1740/2012 the detenue was arrested on 7.11.12 and released on bail on 7.1.2013. The Station House Officer prepared a report against the detenue on KAAPA Act on 20.2.2013 after released from the jail and it is submitted to the Circle Inspector of Police, Hill Palace on 23.3.2013. The report of Circle Inspector of Police, Hill Palace Police Station submitted the report to the 3[rd] respondent the District Police Chief on 25.3.2013. The 3[rd] respondent submitted the report to the District Magistrate the 2[nd] respondent on 30.3.2013. The reason for the reasonable delay is that the Station House Officer had to collect all the relevant files in which the detenue was from the different Police Stations concerned. In all the stages proper perusal of the file is conducted. So there is no inordinate delay as alleged in the Writ Petition._
9. Reading of this affidavit also would therefore show that the release of the detenu from judicial custody on bail was on 7/1/13. However, the first report was made by the Station House Officer on 20/2/13 and he submitted the same to the Circle Inspector of Police only on 23/3/13. Thus, in preparing the report itself, there is a delay of 43 days and in submitting the prepared report also, there is more than a month's delay. The Circle Inspector thereafter submitted his report to the District Police Chief on 25/3/13 and the District Police Chief submitted his report to the 2[nd] respondent on 30/3/13. However, the 2[nd] respondent issued the final order only on 26/6/13. Thus,
**W.P.(Crl.) No.463/13**
## **: 6 :**
evidently delay has occurred both in the preparation of the report and its submission to the Circle Inspector of Police. Apart from stating that this has occurred for collection of the details, which is too vague, there is no satisfactory explanation forthcoming in the affidavit filed by respondents 1 to 3. We are also constrained to note that the first report was received by the detaining authority on 30/3/13 and thereafter he sought two clarifications and it was accordingly further reports were submitted to him on 9/4/13 and 22/5/13. Therefore, the third report was received by the detaining authority on 22/5/13. But however, he has issued Ext.P1 order only on 26/6/13. Therefore, even if delay at the hands of the 2[nd] respondent is reckoned from 22/5/13, there occurred delay of more than one month in issuing Ext.P1 and the affidavit of the 2[nd] respondent does not contain any explanation for this delay.
10. The sum and substance of the story is that the delay between 6/11/12 and 26/6/13 has not been satisfactorily explained in order to sustain Ext.P1 order of detention. Therefore, on the ground of delay in issuing Ext.P1, we are constrained to hold that the detention order is illegal and
## **W.P.(Crl.) No.463/13**
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unsustainable and for that reason, we set aside Ext.P1. We, therefore, direct that the detenu, Shameer alias Mortuary Shameer, be released from detention, unless he is required to be detained in some other case.
Writ petition is disposed of accordingly.
Sd/- **ANTONY DOMINIC, JUDGE**
Sd/- **P.D.RAJAN, JUDGE**
Rp
**//True Copy//**
**PA TO JUDGE**
