Rahila Nazeer v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.T.SANKARAN** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** ## **THURSDAY, THE 28TH DAY OF JANUARY 2016/8TH MAGHA, 1937** ## **WP(Crl.).No. 493 of 2015 (S)** **-----------------------------** **PETITIONER(S):** **-------------** **RAHILA NAZEER W/O. NAZEER, THATTEKKATTU HOUSE, PANANGADU P.O. ERNAKULAM DISTRICT.** **BY ADVS.SRI.DEEPU THANKAN KUM.P.V.JAYALAKSHMY SRI.THOMAS.C.KONDODY SMT.G.RANJITA** **RESPONDENTS:** **--------------** ## **1. STATE OF KERALA** - **REP.BY THE PRINCIPAL SECRETARY TO HOME DEPARTMENT GOVT. SECRETARIAT THIRUVANANTHAPURAM.695 001** ## **2. THE DISTRICT COLLECTOR/** **DISTRICT MAGISTRATE, ERNAKULAM 682 030.** **3. THE CITY POLICE COMMISSIONER, KOCHI CITY. 682 031** **R1-R3 BY ADDITIONAL DIRECTOR GENERAL OF PROSECUTION SRI. K.I. RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 28-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(Crl.).No. 493 of 2015 (S)** **-----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **-----------------------** **EXT.P1. TRUE COPY OF THE LETTER ADDRESSED TO MR.KABEER K.K.RELATIVE OF THE DETENUE AFTER HIS ARREST ISSUED BY AN OFFICE UNDER THE 3RD RESPONDENT 20/8/2015.** **EXT.P2. TRUE COPY OF THE REPORT SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 13/08/2015.** **EXT.P3. TRUE COPY OF ORDER OF THE GOVT. G.O.(RT) NO.2530/2015/HOME, TVM DATED 8/10/2015.** **EXT.P4. TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 21/02/2014.** **EXT.P5. TRUE COPY OF THE FIR IN CRIME NO. 132/2015 OF PANANGAD POLICE STATION.** **EXT.P6. TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE DISTRICT COLLECTOR ON 11/8/2015.** **EXT.P7. TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 17/8/2015.** **EXT.P8. TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 19/10/2015.** ## **RESPONDENTS' EXHIBITS** **-----------------------** **NIL** //True copy// P.A. TO JUDGE Shg/ **(C.R.)** ## **K.T. SANKARAN & K.P. JYOTHINDRANATH, JJ. - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No.493 of 2015** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 28[th] day of January, 2016** ## **J U D G M E N T** ## **K.T. Sankaran, J.** The petitioner challenges in this writ petition the order of detention as well as the continued detention of her husband Nazeer @ Bhai Nazeer, who has been detained under Section 3 (1) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAA (P) Act'). The order of detention was issued on 17.8.2015. It was executed on 20.08.2015. The order of detention was confirmed on 08.10.2015. The detenu was classified in the order of detention as a “known rowdy”. The detaining authority took into account six cases in which the detenu was involved. 2. There was an earlier order of detention against the detenu under Section 3 (1) of the KAA(P) Act. That order was revoked on 24.02.2014 based on the opinion given by the Advisory Board. 3. Proceedings under Section 107 of Cr.P.C. were 2 W.P.(Crl.) No.493 of 2015 also initiated against the detenu on two occasions. It was alleged in the order of detention that the detenu indulged in criminal activities contrary to the terms of the bond executed by him in the proceedings under Section 107 of Cr.P.C. 4. The detenu was in judicial custody for the period from 06.01.2014 to 07.08.2015. It was alleged that even while the detenu was in judicial custody, he indulged in criminal activities and three crimes were registered against him during that period. 5. The last prejudicial activity attributed against the detenu was on 17.02.2015. In respect of the two incidents which took place on that day, crime Nos.132 and 135 of 2015 were registered against the detenu at Panangad Police Station. It is stated that the investigation was completed in one case on 30.03.2015 and in crime No.132 of 2015, final report was filed on 16.04.2015. The sponsoring authority submitted a report to the detaining authority on 13.08.2015, based on which, the order of detention dated 17.08.2015 W.P.(Crl.) No.493 of 2015 3 was issued by the District Magistrate. 6. The learned counsel for the petitioner submitted that the order of detention was not served on the detenu when he was arrested and it is a flagrant violation of Section 7 of the KAA(P) Act. It is stated that the signature of the detenu was obtained in several papers. But the order of detention was not supplied, while supplying certain other papers to him. 7. Section 7(1) of the KAA(P) Act provides that when a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. 8. The learned Additional Director General of Prosecution submitted that the order of detention was served on the detenu at the time when he was arrested. The averments in the counter affidavit filed by the respondents are also to that effect. 9. The original files were made available for our perusal by the learned Additional Director General of W.P.(Crl.) No.493 of 2015 4 Prosecution which shows that the detenu acknowledged the receipt of the order of detention and made an endorsement wherein he also stated that he read and understood the same. As against the official records, there is only an averment of the wife of the detenu to the contra. We do not think that the averment made by the wife of the detenu that the detenu was not served with the order of detention can be relied on when the records show otherwise. 10. The learned counsel for the petitioner submitted that the last prejudicial activity alleged against the detenu was on 17.02.2015 and the order of detention was issued only on 17.08.2015, six months after the last prejudicial activity. The learned counsel submitted that the period for which a person can be detained under the KAA(P) Act is six months and if an order of detention is passed after the expiry of six months from the date of the last prejudicial activity, it has to be taken that the live link between the prejudicial activity and the order of detention was snapped. The learned counsel relied on two decisions of this Court in W.P.(Crl.) No.493 of 2015 5 **Abidha Beevi v. State of Kerala [2013 (1) KLT 286]** and **Jimesh Jose v. State of Kerala [2013 (1) KLT 447]** . In these decisions the same Division Bench held that the cause for the delay between the date of last prejudicial activity and the date of passing the detention order was not explained. The respondents did not give any satisfactory explanation for the delay in the counter affidavit as well. The delay remained unexplained. Even then the Division Bench cautioned that “mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned”. In Jimesh Jose's case, the Division Bench held that when the maximum period for which a person can be detained is determined to be six months, delay of 4 ½ months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. This finding was arrived at on the basis of the fact situation in that case where the order of detention W.P.(Crl.) No.493 of 2015 6 as well as the counter affidavit did not provide any explanation for the delay. The Division Bench was only making a stress that inordinate and unexplained delay would be fatal to the order of detention. It is not laid down as law in Jimesh Jose's case (cited supra) that whenever the period of six months from the date of last prejudicial activity is over, there can be no order of detention. 11. In **Praseedha Shiju v. State of Kerala and Ors. [2013 (2) KHC 656]** , another Division Bench of this Court held that where there is a delay of three months in passing the order of detention after the alleged last anti-social activity, it cannot be said that the live link has been snapped or the detention order is vitiated, provided the delay is properly explained. In **Golam Hussain Alias Gama v. Commissioner of Police, Calcutta and Ors. [AIR 1974 KHC 690 = AIR 1974 SC 1336]** , the Hon'ble Supreme Court held that there must be a live link between the grounds of criminal activity alleged by the detaining authority and the purpose of detention. This credible chain W.P.(Crl.) No.493 of 2015 7 would be snapped if there is too long and unexplained an interval between the offending acts and the order of detention. However, it was held that “no mechanical test by counting the months of interval is sound. It all depends on the nature of the acts relied on, grave and determined or less serious and corrigible, on the length of the gap, short or long, on the reason for the delay in taking preventive action, like information of participation being available only in the course of an investigation”. In **Gora v. State of West Bengal [AIR 1975 SC 473]** , the Hon'ble Supreme Court relied on the decision in **[AIR 1974 SC 1336]** and held thus: “There is, therefore, no hard and fast rule that merely because there is a time lag of about six months between the 'offending acts' and the date of the order of detention, the causal link must be taken to be broken and the satisfaction claimed to have been arrived at by the District Magistrate must be regarded as sham or unreal. Whether the acts of the detenu forming the basis for arriving at a subjective satisfaction are too remote in point of time to induce any reasonable person to reach such subjective satisfaction must depend on the facts and circumstances of each case. The test of proximity is not a rigid or mechanical test to be blindly applied by merely counting the number of months between the 'offending acts' and the order of detention. It is a subsidiary test evolved by the court for the purpose of determining the W.P.(Crl.) No.493 of 2015 8 main question whether the past activities of the detenu is such that from it a reasonable prognosis can be made as to the future conduct of the detenu and its utility, therefore, lies only in so far as it subserves that purpose and it cannot be allowed to dominate or drown it.” 12. It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six moths from the last prejudicial activity expires, no order of detention can be passed. The legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under Section 3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is inordinate W.P.(Crl.) No.493 of 2015 9 and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention. 13. In the present case, the order of detention specifically refers to the reasons why the order of detention W.P.(Crl.) No.493 of 2015 10 was passed after a lapse of few months from the date of the last prejudicial activity. Apart from stating 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 the detenu and his release on bail on 07.08.2015. We are of the view that the detaining authority has satisfactorily explained the delay in passing the order of detention. 14. For the aforesaid reasons, we do not find any ground to hold that the order of detention or the continued detention of the detenu is illegal. The writ petition lacks merits and it is accordingly dismissed. Sd/- **K.T. SANKARAN JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** shg/ //True copy// P.A. To Judge