N.P. Shajahan v. State of Kerala & Others

**WP(Crl.) NO.231 OF 2024** **1** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MR. JUSTICE S.MANU** **WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 WP(CRL.) NO. 231 OF 2024** ## **PETITIONER/S:** **N.P.SHAJAHAN AGED 40 YEARS S/O ABDUL RAZAK, 21/1535, NOORJAHAN NIVAS, CHAKKUMKADAVU, VALIYAKAM PARAMBU, KALLAYI P.O, KOZHIKODE, PIN - 673003** **BY ADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMI SHANKAR NANCY MOL P. ANANDHU P.C. NEETHU.G.NADH CIYA E.J.** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,, PIN - 695001 2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KANNUR DISTRICT,, PIN - 670002 3 THE DISTRICT POLICE CHIEF, KANNUR CITY,, PIN - 670002 4 THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA** **WP(Crl.) NO.231 OF 2024** **2** **NAGAR, ELAMAKKARA,, PIN - 682026** - **5 THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, VIYYUR, PIN - 670004** **BY SRI.K.A.ANAS, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON** **22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.) NO.231 OF 2024** **3** ## **JUDGMENT** ## **Dated this the 22[nd] day of May 2024** ## **S.Manu, J.** This writ petition has been filed by a friend of the detenu, Abdul Rahim P, aged 32 years, s/o Muhammed Koya, Pattarath House, Pothuvacherry P.O., Kannur, who has been detained pursuant to Ext.P1 order dated 26.06.2023 of the 2[nd] respondent. 2. The chronology of relevant events shows that the order of detention was issued on 26.06.2023 and the same was executed on 27.01.2024. 3. Various contentions have been raised in the writ petition. The respondents 1 and 2 have filed separate counter affidavits refuting the averments and contentions in the writ petition. 4. We have heard Sri.M.S.Hanis, learned Counsel for the petitioner and Sri.K.A.Anas, learned Government Pleader. 5. On hearing the learned Counsel for the petitioner and the learned Government Pleader and perusing the pleadings, we find that it is not necessary to address all contentions raised in this writ petition, which have been duly controverted by respondents. We note that the contention raised by the learned Counsel for the petitioner regarding the delay in execution **WP(Crl.) NO.231 OF 2024** **4** of the order of detention merits consideration. As noted above, the order of detention was issued on 26.06.2023. The date of execution is 27.01.2024. Therefore, there is a long time gap of 216 days between the date of issuance of the order of detention and its execution. 6. The learned Counsel for the petitioner apart from pointing out the long delay in executing the order of detention, specifically submitted that the detenu was arrested on 12.01.2024 in Crime No.362/2023 of Edakkad Police Station and was remanded and while he was undergoing custody in the said case, Ext.P1 order of detention was executed on 27.01.2024. Learned Counsel points out that there is a delay of 15 days in executing Ext.P1, despite the detenu being in judicial custody. He argued that no specific reasons have been offered by respondents for the said delay of 15 days in executing the order of detention after the arrest and remand of the detenu in Crime No.362/2023. 7. The learned Government Pleader on the other hand submitted that the delay in executing the detention order has been properly explained in the counter affidavit filed by the 2[nd] respondent. He submitted that the detenu was absconding and various steps were diligently taken by the concerned authorities as provided under the KAAPA Act for executing the detention order. **WP(Crl.) NO.231 OF 2024** **5** 8. The specific contention of the learned Government Pleader is that the detenu cannot take advantage of his own mischief and raise a ground that he is entitled to get the detention set aside on account of the delay in executing the order of detention. Learned Government Pleader specifically referred to Paragraph 10 of the counter affidavit filed by the 2[nd] respondent. 9. It has been stated in the said paragraph that the detention order was issued on 26.06.2023 with a direction to the District Police Chief, Kannur to execute the same. But the said Officer reported on 21.07.2023 that the detenu was absconding and action under Section 6 of KAAPA Act should be initiated. It is further stated that resort to the provision of Section 6 of the Act was made and a Gazette notification was published on 25.08.2023 with a direction to the detenu to surrender before the SHO, Kannur Town Police Station. The said notification has been produced as Ext.R2(a). 10. Later, on 15.01.2024, the District Police Chief reported that on 08.01.2024, the detenu assaulted police officials on patrol duty for which Crime No.16/2024 was registered against him in Edakkad Police Station and he was arrested on 13.01.2024. The further averments in Paragraph 10 regarding execution reads as follows. **WP(Crl.) NO.231 OF 2024** **6** _'After that, on 29.01.2024, the District Police Chief informed that detention order was executed and the detenu was arrested by Inspector SHO, Kannur Town Police Station at 15.15 hrs on 27.01.2024 at Special Sub Jail Kannur, who was already in judicial custody in Crime No.16/2024 of Edakkad Police Station and detained in the Central Prison & Correctional Home, Kannur, on the same day as D No.18/2024 after complying all legal formalities.”_ 11. We agree with the learned Government Pleader regarding the first limb of his submission that detenu, who was absconding cannot later claim advantage of the delay in executing the order of detention. 12. We are satisfied that the respondents had taken action as contemplated under KAAPA Act on realising that the detenu was absconding. However, it is admitted that the detenu was arrested on 13.01.2024 in connection with Crime registered by Edakkad Police Station and was in judicial custody from the said date. It is only on 27.01.2024, Ext.P1 detention order was executed and the detenu was detained after complying the formalities. Therefore, there is a time gap of about 14 days from the date of arrest of the detenu and the execution of the detention order. 13. The Hon'ble Supreme Court in **Manju Nahar v. Union of India and others[1999) 4 SC 116** held thus: _“This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution_ **WP(Crl.) NO.231 OF 2024** **7** _of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the “satisfaction” of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent._ 14. The mere fact that there was some gap of time in executing the detention order will not vitiate the detention, if proper explanation is is offered by respondents for the delay in executing the detention order. In other words, every delay will not necessarily lead to vitiation of the detention, if there are sufficient reasons shown for the time taken to execute the detention order. 15. Here, in the case on hand, we note that no reasons have been offered by respondents for the delay of about 14 days in executing the detention order, despite the detenu being in judicial custody. It is not discernable from the counter affidavit filed by the 2[nd] respondent as to when the learned jurisdictional Magistrate was approached with an application for permission to execute Ext.P1 order of detention. It is also not stated as to when such permission was obtained and as to why a period of about two weeks was required for executing the detention order. 16. For the reasons stated in the previous paragraphs, we are of the view that the delay in executing the order of detention after the **WP(Crl.) NO.231 OF 2024** **8** arrest of the detenu by Edakkad Police has not been properly explained by the respondents. Therefore, the only conclusion that can be arrived at is that the detention is vitiated on account of the unexplained delay in executing the order of detention. 17. In view of our findings as above on the issue of delay in executing the order of detention after the arrest of the detenu in the Crime registered by Edakkad Police Station, we need not consider the other contentions raised in the writ petition. 18. In the result, the detention of the detenu is declared as vitiated on account of the delay in executing the order of detention. We direct that the detenu shall be released forth with, if his detention is not required in any other legal proceedings. Registry is directed to communicate this order forthwith to the Superintendent of Central Prison, Viyyur. Sd/ **==> picture [495 x 13] intentionally omitted <==** **sd/** ## **S.MANU, JUDGE** **jm/** **WP(Crl.) NO.231 OF 2024** **9** **APPENDIX OF WP(CRL.) 231/2024** **PETITIONER EXHIBITS Exhibit -P1 A TRUE COPY OF THE ORDER NO.DCKNR/7507/2023/SS1 DATED 26.06.2023 OF THE 2ND RESPONDENT RESPONDENT EXHIBITS EXHIBIT R2(a) True copy of Gazette notification dated 25.8.2023 EXHIBIT R2(b) True copy of the FIR in Crime No.16/2024 of Edakkad Police Station**