Neenu Kalesh v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **FRIDAY, THE 8[TH] DAY OF OCTOBER 2021 / 16TH ASWINA, 1943 WP(CRL.) NO.218 OF 2021** ## **PETITIONER/S:** **NEENU KALESH, AGED 28 YEARS, W/O.KALESH, KSUNAMI FLAT NO.8, HOUSE NO.60, POOKULAM, PARAVOOR P.O., KOLLAM - 691 301.** ## **BY ADV SRI.BIJU C. ABRAHAM** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,**| ||**HOME DEPARTMENT, SECRETARIAT,**| ||**THIRUVANANTHAPURAM - 695 001.**| |**2**|**THE DISTRICT COLLECTOR,**| ||**OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION ROAD,**| ||**KAANKATHU MUKKU, KOLLAM - 691 013.**| |**3**|**THE DISTRICT POLICE CHIEF,**| ||**OFFICE OF THE DISTRICT POLICE CHIEF,**| ||**VHJW+5WV, MUNDAKKAL, KOLLAM - 691 001.**| |**4**|**THE SUPERINTENDENT, CENTRAL PRISONS, POOJAPURA,**| ||**THIRUVANANTHAPURAM - 695012.**| **BY** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.GRACIOUS KURIAKOSE,** **ASSISTED BY GOVERNMENT PLEADER SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.)No.218 of 2021** **- 2 -** **K.Vinod Chandran & Ziyad Rahman, JJ. -----------------------------------WP(Crl.) No.218 of 2021-S -----------------------------------Dated, this the 08[th] October 2021** ## **JUDGMENT** ## **Vinod Chandran,J.** **The petitioner's husband was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 ['KAA(P)A' for brevity] against which the present writ petition is filed. We heard Sri.Biju C.Abraham for the petitioner and Sri.K.A.Anas for the State.** **2. The learned Counsel for the petitioner has raised four grounds. The first ground is that the detention order was passed on 19.05.2021 and the approval is only on 11.06.2021.** _**Soja Beegum v. Additional Chief Secretary to Government [2009 (4) KLT 550]**_ **is relied on to contend that the twelve days within which the approval order has to be passed, is with reference to the order of detention. The next ground is that the last prejudicial act was on 19.12.2020 and the order of detention is on 19.05.2021, after five months. Hence there is no live link between the last prejudicial act and the order of detention. The learned Counsel then argues that in six cases the detenu has compounded the offence and** **- 3 -** **WP(Crl.)No.218 of 2021** **the same cannot be reckoned for a detention order. The last argument is that FIR 146/2018 and FIR 147/2018 were registered in the same Station, but the date of registration of the later crime is on a date prior to the former. This shows the callous nature in which crimes have been registered against the detenu. It is submitted that the detenu is an addict and most of the cases are on the ground of possession of narcotic substances.** ## **3. Sri.Anas, learned Government Pleader, seeks to** **support the order of detention and the consequent detention. Section 3(3) has two limbs and the approval is to be passed within twelve days from the execution of the detention which is what the cited decision also declared. On the ground of live link having broken, it is submitted that the accused was arrested in the last crime on 19.12.2020 itself and he was in judicial custody till he was granted bail on 22.01.2021. The final report in that case was filed on 12.01.2021. Immediately thereafter on 10.02.2021 the Sponsoring Authority made a recommendation on which the Detaining Authority sought a clarification. The clarification was issued by a report on 03.05.2021 and the order was passed on 19.05.2021. These have been clearly stated in the detention order, which is** **- 4 -** **WP(Crl.)No.218 of 2021** **sufficient explanation for the delay.** _**Rahila Nazeer v. State of Kerala**_ **[** _**2016 (3) KHC 189 (DB)**_ **] is relied on to urge sufficient explanation for delay.** _**Ammini S. v. State of Kerala**_ **[** _**2016 (3) KHC 456 (DB)**_ **] is relied on to argue that merely because no crime is committed for a long time, it does not vitiate the detention order and it is the cumulative effect of the crimes committed in the last seven years that should be looked at.** **4. Section 3(3), as specifically pointed out by the Government Pleader, has two limbs. The first limb requires the order made under Section 3 to be forthwith reported to the Government and the Director General of Police. The second limb provides that it shall not remain in force for more than twelve days, excluding public holidays, from the date of detention of the known-goonda or known-rowdy unless it has been approved by the Government. In** _**Soja Beegum**_ **(supra) the Division Bench was concerned with the first limb of Section 3(3). There, the detention order was passed on 31.03.2008 and the order along with the supporting documents were forwarded to the Government only on 11.08.2009; after the detention order was executed on 05.08.2009. Thereafter an order of approval was passed, within twelve days of the date of** **- 5 -** **WP(Crl.)No.218 of 2021** **detention. The question considered and answered was whether the forwarding of the order with supporting documents has to be from the date of the order or the date of detention, the latter being the date on which the arrest is made pursuant to the order. Here there is no dispute as to the order having not been forwarded forthwith. We see from the records that the order was forwarded on the same day of order of detention, i.e., 19.05.2021. The execution of the order was on 27.05.2021 and the approval has to be made from the date of such execution, which is the date of detention. The approval of the order was on 11.06.2021, within the time stipulated. The dictum in** _**Soja Beegum**_ **(supra) is only to the effect that even if the approval is made by the Government within twelve days from the date of detention, if the detention order has not been forwarded forthwith, after it is issued, then it may vitiate the order depending upon the facts and circumstances. We do not think the cited decision has any application.** **5. As to the compounding of offences, it is rightly contended by the Government Pleader that even if the offence is compounded, there is necessarily a conviction. A single conviction would suffice under the KAA(P)A for passing an** **- 6 -** **WP(Crl.)No.218 of 2021** **order of detention. We would not look into the contention regarding the dates on which FIR 146 of 2018 and 147 of 2018 are registered in the Paravoor Police Station, since even if the two cases are eschewed there are enough to arrive at a subjective satisfaction under the KAA(P)A.** **6. Now we come to the contention regarding the breaking of live link.** _**Abidha Beevi v. State of Kerala**_ **[** _**2013 (1) KLT 286**_ **] held that four and a half months delay is sufficient reason to find that the live link has broken with reference to the last prejudicial activity.** _**Rahila Nazeer**_ **(supra) held that the period of detention cannot be the determining factor to assess whether there is inordinate and unexplained delay; if the delay is satisfactorily explained. Hence the dictum is with respect to the satisfactory explanation which would have to be considered on the factual situation arising in the individual cases. From the facts of the said decision it is discernible that the last prejudicial act was on 17.02.2015 and the order of detention on 17.08.2015; after six months. As explanation it was stated that the investigation of the last crime was pending and the charge-sheet in that case was filed on 16.04.2015. The Detaining Authority also referred to the judicial custody of** **- 7 -** **WP(Crl.)No.218 of 2021** **the detenu and his release on bail on 07.08.2015. Hence, it is evident that the Detaining Authority stayed its hands since the detenu was already under judicial custody and took up the matter only when he was released on bail. The order of detention was passed ten days after the detenu was released from judicial custody.** **7.** _**Ammini.S.**_ **(supra) was a case in which the last prejudicial act was on 07.02.2015 and the detention order was on 15.07.2015, after more than five months. The dictum laid down was that merely because no crimes were committed for a long period, that would not save a known-goonda or known-rowdy from the rigour of KAA(P)A since it is the cumulative effect of the nature of crimes in which the detenu is involved during the previous seven years that assumes relevance. The immediate activity of the detenu would only supply the necessary factual foundation for the Detaining Authority to arrive at a subjective satisfaction. We do not think that the said declaration is correct especially since another Division Bench has held to the contrary in** _**Abidha Beevi**_ **(supra). We would have normally referred the matter to a larger Bench, but we desist from doing so since the later Division Bench has not noticed the earlier Division Bench. We** **- 8 -** **WP(Crl.)No.218 of 2021** **rely on the earlier Division Bench, as has been held by the Hon'ble Supreme Court in** _**National Insurance Co. Ltd. v. Pranay Sethi**_ **[** _**2017 (4) KLT 662 (SC)**_ **]** _**.**_ **8. In the instant case, the last prejudicial act was on 19.12.2020 and he was arrested on the same day. He was granted bail and was released from judicial custody on 22.01.2021. The date of filing of the final report has no relevance, since the detenu is at large. The Sponsoring Authority made the first recommendation on 10.02.2021. The explanation for the delay is in the first paragraph of Ext.P1. The detaining authority says that after verifying the report of the Sponsoring Authority, the details of arrest and bail in three crimes have not been disclosed and there is no readable copy of the FIR in one of the crimes. This is the subject matter of the further report of the Sponsoring Authority on 03.05.2021. The delay was on account of the Sponsoring Authority having not forwarded the entire details to the Detaining Authority, who also sat over the report before a clarification was sought. We find the explanation to be not satisfactory. After the last prejudicial act, five months have elapsed before the detention order was passed. Though the detenu was in judicial custody for one month from** **WP(Crl.)No.218 of 2021 - 9 -** **the date of the last prejudicial act, he was at large on being released from custody for four months, within which time he has not committed any crimes. We are of the opinion that the live link has been broken and on this ground, the writ petition has to be allowed. We direct the detenu to be released forthwith.** **Writ Petition (Criminal) would stand allowed.** **Sd/K. Vinod Chandran Judge Sd/Ziyad Rahman A.A. Judge** **vku/-** **- 10 -** **WP(Crl.)No.218 of 2021** ## **- APPENDIX OF WP(CRL.)NO.218/2021 S** ## **PETITIONER'S EXHIBITS:-** **Exhibit P1 TRUE COPY OF THE ORDER DATED 19/5/2021 ISSUED BY THE 2ND RESPONDENT.** **Exhibit P2 TRUE COPY OF THE ORDER BEARING NO.HOME-SSA5/113/2021-HOME DATED 11/6/2021 ISSUED BY THE 1ST RESPONDENT.** **Exhibit P3 TRUE COPY OF THE REPRESENTATION DT.18/6/2021 PREFERRED BY THE DETENUE BEFORE THE ADVISORY BOARD. Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 19/7/2021 SUBMITTED BY THE DETENUE BEFORE THE ADVISORY BOARD THROUGH THE 4TH RESPONDENT. Exhibit P5 TRUE COPY OF THE COMPLAINT DATED 29/5/2020 SUBMITTED BY THE PETITIONER BEFORE THE VANITHA CELL, KOLLAM. Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 29/5/2020 SIGNED AND SUBMITTED BY THE INHABITANTS OF THE LOCALITY. Exhibit P7 TRUE COPY OF THE ORDER BEARING GO(RT) NO.2176/2020/HOME DATED 4/8/2021 PASSED BY THE 1ST RESPONDENT.**