P.M. Vijayan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & THEHONOURABLEMR.JUSTICEG.GIRISH THURSDAY,THE18[TH]DAYOFJULY2024/27THASHADHA,1946 ``` ## **`WP(CRL.) NO. 599 OF 2024`** ``` PETITIONER: ``` ``` P.M.VIJAYAN AGED49YEARS POOLAKUNDUHOUSE,KONGAD,PALAKKAD DISTRICT,PIN-678631 ``` ``` BYADVS. V.T.RAGHUNATH C.V.RAJALAKSHMI ``` ``` RESPONDENTS: ``` - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031`** - **`2 DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD DISTRICT, COLLECTORATE PALAKKAD, PIN - 678013`** - **`3 DISTRICT POLICE CHIEF, KUNNATHNADU, PALAKKAD, PIN - 678013`** - **`4 SUPERINTENDENT OF HIGH SECURITY PRISON, VIYYUR VIYYUR, THRISSUR, PIN - 680010`** - **`5 STATION HOUSE OFFICER KONGAD POLICE STATION KONGAD, PALAKKAD DISTRICT, PIN - 673681`** - **`6 STATION HOUSE OFFICER MANKARA POLICE STATION`** 2 WP(Crl.) No.599 of 2024 # **`MANKARA, PALAKKAD DISTRICT, PIN - 678613`** ``` 7STATIONHOUSEOFFICER KUTTIPPURAMPOLICESTATION KUTTIPPURAM,MALAPPURAM DISTRICT,PIN-678591 ``` ``` BYADVS. ``` ``` ADVOCATEGENERALOFFICEKERALA ADDL.DIRECTORGENERALOFPROSECUTION(AG-11) ``` ``` OTHERPRESENT: ``` ``` SRIKAANAZ,PP ``` ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFORFINAL HEARINGON18.07.2024,THECOURTONTHESAMEDAY DELIVEREDTHEFOLLOWING: ``` 3 WP(Crl.) No.599 of 2024 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The petitioner herein is the father of the detenu, Sri. Vijeesh. Ext.P1 detention order has been issued by the 2nd respondent on 25.1.2024 classifying the detenu as a ‘known rowdy’ under Section 2(p) r/w. Section 2(t) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for the sake of brevity) on account of his involvement in six crimes registered within the jurisdictional limit of Kongad Police Station and Mankara Police Station of Alappuzha District. He is also involved in crimes registered at the Kuttippuram Police Station in Malappuram District. The detenu was detained on 5.3.2024 and is undergoing detention at the Central Prison, Viyyur. 2. Sri. V.T. Raghunath, the learned counsel appearing for the petitioner submitted that for classifying the detenu as ‘known rowdy’, six crimes have been taken into consideration. Crime Nos. 455 of 2020, 457 of 2020, 482 of 2020, and 489 of 2020 were registered within a span of six months starting from 10.6.2020 and ending on 5.12.2020. Crime No.745 of 2021 of the Kongad Police Station was registered on 6.11.2021. The last prejudicial act 4 WP(Crl.) No.599 of 2024 committed by the detenu led to the registration of Crime No. 757 of 2023 on 20.8.2023. The learned counsel points out that the Superintendent of Police had submitted a report on 27.9.2023 and a subsequent report on 25.10.2023 seeking initiation of proceedings against the detenu to prevent such person from committing any anti-social activity. However, Ext.P1 order of detention was passed only on 25.1.2024 and the order was executed only on 5.3.2024. There is an inordinate and unexplained delay in passing the detention order and further in executing the order of detention, submits the learned counsel. 3. The learned Public Prosecutor has opposed the submissions, and it is argued that in the order, sufficient explanation has been offered for the delay in passing the order of detention. 4. We have carefully considered the submissions advanced. 5. In the instant case, six crimes have been taken note of for passing the order of detention. The last prejudicial activity resulted in the registration of Crime No. 757 of 2023 in respect of an incident that took place on 20.8.2023. It is thereafter that the report of sponsorship was submitted by the State Police Chief on 27.9.2023 5 WP(Crl.) No.599 of 2024 and a subsequent report on 25.10.2023. However, the order of detention was passed after about four months from the date of sponsorship. All that is stated is that some delay has occurred in perusing the records. 6. It is settled by now that there has to be a live-link between the prejudicial activity and the order of detention. No hard-and-fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, it has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenu from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay, the court has to investigate whether the link has been broken in the circumstances of each case (See **Licil Antony v. State of Kerala[1]** ). > 1 [(2014) 11 SCC 326] 6 WP(Crl.) No.599 of 2024 In the case on hand, no reasons whatsoever, let alone any justifiable reason has been offered for the long delay in passing the order of detention. This assumes particular relevance as in the case of KAAPA, Section 12 provides that in the case of first detention order, the detenu can be detained for a period of up to six months. The non-explanation of the delay, according to us, is fatal. 7. There is yet another matter. In the instant case, though the order of detention was passed on 25.1.2024, the order was executed only on 5.3.2024. There has been a delay of over two months in getting the order executed. No explanation is offered for the same. In **Susantha Kumar Manik v. State of Tripura and Ors.[2]** , it was held that when there is a delay in executing the detention order by arresting the detenu from the date of order of the detention and the same was not satisfactorily explained, it would throw considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing the detention order and consequently, render the detention order bad and invalid because the live and proximate link between the grounds of detention and the purpose of detention is snapped by not arresting > 2 [2022 SCC OnLine SC 1333] 7 WP(Crl.) No.599 of 2024 the detenu. 8. Having considered the submissions, we are of the view that the order of detention is liable to interfered on the above two grounds, i.e., the delay of over four months from the last prejudicial act and the date of sponsorship to the passing of the order of detention and the long delay in executing the detention order. For the reasons above, the petitioner is entitled to succeed. Ext.P1 order is quashed. There will be a direction to the Superintendent of Police, Central Prison, Viyyur to release the detenu, Sri. Vijeesh, forthwith if he is not required in connection with any case. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** Sd/- **G.GIRISH, JUDGE** Ded 8 WP(Crl.) No.599 of 2024 ## **`APPENDIX OF WP(CRL.) 599/2024`** ``` PETITIONEREXHIBITS ExhibitP1COPYOFTHEDETENTIONORDERPASSEDBYTHE 2NDRESPONDENTDT.25.01.2024 ExhibitP2COPYOFTHEORDEROFCONFIRMATIONOFTHE DETENTIONORDERBYTHEHOMEDEPARTMENTDT. 19.03.2024 ExhibitP3COPYOFTHEGOVERNMENTORDERG.O(RT)N0. 1241/2024/HOMEDATED27.04.2024 ExhibitP4TRUECOPYOFTHEORDERNO.THEORDERNO. DCPKD/13448/2023-S1DATED25.01.2024OFTHE DISTRICTCOLLECTOR&DISTRICTMAGISTRATE ISSUEDU/S3OFTHEKAAPACT ```