Sabana v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.** **TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 WP(CRL.) NO. 1130 OF 2022** ## **PETITIONER:** SABANA, W/O ASHIK K. K., AGED 36 YRS, RESIDING AT KANIYAN KUNNUMMAL HOUSE, PAVANOOR MOTTA, KUTTIATTOOR, KANNUR – 670602. BY ADV K.V.SABU ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME (SSA) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 DISTRICT COLLECTOR, COLLECTORATE ROAD, THAVAKKARA, KANNUR-670002. 3 DISTRICT POLICE CHIEF, THAVAKKARA, KANNUR-670002. 4 STATION HOUSE OFFICER, MAYYIL POLICE STATION, KANNUR -670602. BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ## **OTHER PRESENT:** SRI. K.A. ANAS-GP THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: # **ALEXANDER THOMAS & ZIYAD RAHMAN A.A., JJ.** **-------------------------------------------------------------------------** W.P. (Crl) No.1130 of 2022 **--------------------------------------------------------------------** Dated this the 07[th] day of March, 2023 ## **JUDGMENT** ## **Alexander Thomas, J.** The prayers in the instant writ petition (criminal), W.P.(Crl.) are as follows: - _“i) Issuse writ of certiorari, direction or order directing the 1[st] respondent to produce the relevant documents leading to issue Ext.P2 & P4 orders and to quash the same._ - _ii) Issue such others orders or direction to release the detenue/petitioner’s husband from the judicial custody and set him at liberty._ _iii) Dispense with the filing of the translation of vernacular documents.”_ 2. Heard Sri.K.V. Sabu, learned counsel appearing for the petitioner and Sri.K.A. Anas, learned Public Prosecutor, appearing for the respondents. 3. The petitioner herein is the wife of the detenu involved in this case. The challenge mounted in this writ petition (criminal) is against the impugned proceedings, issued under Sec.3(1) of the Kerala W.P. (Crl) No.1130 of 2022 2 Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred for short as ‘KAAPA Act’), whereby it has been ordered by the 2[nd] respondent-District Collector, Kannur, that, in view of the facts and circumstances stated therein, it is imperative and necessary to detain the detenu under Sec.3(1) of the above Act, inorder to prevent him from committing further prejudicial anti-social activities, as conceived in Sec.2(a) of the above Act. The brief facts leading to this writ proceedings are as follows: 4. Six crimes have been reckoned, for treating the detenu as “known-rowdy”, as conceived in Sec.2(p)(iii) read with Sec.2(t) of the above Act. In five out of such six cases, the investigation has been competed and the final report, by way of charge-sheet, has been filed. The investigation was pending, as regards the sixth and last crime, at the time when the impugned detention order dated 27.04.2022 was issued by the 2[nd] respondent. 5. The details of the six crimes are stated in the impugned detention order dated 27.04.2022 and have also been reiterated in para No.6 on page Nos.6 to 8 of the counter affidavit dated 20.12.2022, filed by the 1[st] respondent-State Government, in this case. W.P. (Crl) No.1130 of 2022 3 6. There is no major dispute that the allegations in the said crimes are as those reflected in the respective FIRs. So, there is no major dispute that the detenu herein would broadly satisfy the definitional contours of “known-rowdy”, as conceived in Sec.2(p)(iii) read with Sec.2(t) of the above Act, going by the abovesaid six crimes. 7. The aforesaid last and sixth crime viz., Crime No.209/2022 of Mayyil Police Station, Kannur District, was registered for offences punishable under Secs.143, 147, 148, 341, 323, 324, 308 read with Sec.149 of Indian Penal Code (IPC). The date of occurrence of the abovesaid crime incident was on 09.03.2022 and the FIR in that case was registered on 11.03.2022. The detenu was arrested on 12.03.2022 and he was remanded to judicial custody. The 3[rd] respondent-District Police Chief, Kannur (sponsoring authority) has given report in the matter on 07.04.2022, recommending to the 2[nd] respondent-District Collector that, in view of the facts and circumstances stated therein, it is a fit case to enable the 2[nd] respondent to pass an order under Sec.3(1) to preventively detain the detenu, in order to restrain him from committing further prejudicial activities. The 3[rd] respondent has, _inter-alia_ , stated in the W.P. (Crl) No.1130 of 2022 4 said report dated 07.04.2022 that, the detenu was under judicial remand in the sixth and last crime, at that point of time. Considering these aspects, the 2[nd] respondent-District Collector, as the authorised detaining authority, has passed the impugned detention order No.DCKNR/4076/2022/SS1 dated 27.04.2022, ordering the preventive detention of the detenu under Sec.3(1) of the Act, as stated above. The 2[nd] respondent, while passing the detention order on 27.04.2022, has proceeded on the premise that the detenu was actually under judicial remand at the time of issuance of the detention order dated 27.04.2022. Further, according to the respondents, the impugned detention order dated 27.04.2022 could not be immediately executed by arresting the detenu, as he was then absconding. According to the respondents, they could get the detention order executed by, arresting the detenu, only on 06.08.2022 and that too after issuing proceedings regarding the absconding of the detenu under Sec.6(1)(a) of the Act and a Gazette notification was also issued later. 8. After the execution of the detention order on 06.08.2022, the impugned detention order dated 27.04.2022 was approved by the State Government on 24.08.2022. The Government, later, referred W.P. (Crl) No.1130 of 2022 5 the matter for the considered opinion of the Advisory Board on 26.08.2022 under Sec.9 of the Act. The Advisory Board, thereafter, gave a report recommending to the Government that there is sufficient cause for the preventive detention of the detenu, under Sec.10(1) of the Act, on 29.09.2022. Thereafter, the respondent Government has confirmed the detention order dated 27.04.2022, by issuing Ext.P4 G.O.(Rt) No.2993/2022/HOME dated 27.10.2022, etc. 9. The learned counsel appearing for the petitioner has raised two grounds in support of his argument that the impugned detention order, as confirmed by Ext.P4 Government Order, is liable for quashment. The first ground is that the 2[nd] respondent has not considered the efficacy or otherwise of the Sec.107 Cr.P.C. proceedings initiated against the detenu and has not considered the bail bond executed by the detenu in the said Sec.107 Cr.P.C. proceedings on 20.04.2022. Hence, it is urged that the impugned proceedings is liable for quashment. 10. The learned Public Prosecutor has seriously opposed the abovesaid contention of the petitioner. 11. It is stated, in the penultimate paragraph on internal page W.P. (Crl) No.1130 of 2022 6 No.5 of the detention order dated 27.04.2022 that, though Sec.107 Cr.P.C. proceedings has been initiated against the petitioner, the said proceedings under the Cr.P.C. would not be sufficient to effectively prevent the detenu from committing further prejudicial activities. The said penultimate paragraph, on internal page No.5 of the detention order dated 27.04.2022, reads as follows:- "ത�ങൾ മണൽ കടത�, ലഹര� വസതകൾ കക�ണ� വന� വ�ൽപന എന� സ�മ�ഹ�വ�ര�ദ പ!വർതനങള�ൽ ത�ടർന�% ഏർകപട�ന�കണന�% ത�ങകള അതരത�ല�ള പ!വർതനങള�ൽ ന�ന�% ആപകമണങള�ൽ ന�ന�% തടയ�നത�ലലക�യ� ട�യ�കന കര�തൽ തടങല�ൽ !�ർപ�ലകണത� അന�വ�ര�മ�കണന�% ജ�ല� ല!�ല�സ� ലമധ�വ� റ�ലപ�ർട� ക2യ ട�ളത�മ�ണ� . ലമൽ ലകസ�കൾ !ര�ല4�ധ�ചത�ൽ ന�ന�% കസകൻ 107 Cr P C പ!ക�രമ�ള നട!ട�കൾ ത�ങകള ക�റക9ത�ങള�ൽ ഏർകപട�നത�ന ” തടയ�നത�ന !ര��പമകലന എന�ക ല;�ധ�കപട�ട�ണ . _(emphasis supplied)”_ 12. So, it can be seen that the abovesaid aspects, regarding the Sec.107 Cr.P.C. proceedings initiated against the detenu, has been duly adverted to and considered by the 2[nd] respondent at the time of the issuance of the impugned Ext.P1 detention order. So, the first contention of the petitioner cannot be accepted. 13. The second contention urged by the petitioner is to the effect that, it is true that the detenu was arrested for his involvement in the sixth and last crime on 12.03.2022 and that he was also W.P. (Crl) No.1130 of 2022 7 remanded to judicial custody since 13.03.2022. But that, later, the trial court concerned (Judicial First Class Magistrate Court-II, Kannur), has issued Ext.P1 order dated 08.04.2022 in Crl.M.P. No.1536/2022 in Crime No.209/2022 of Mayyil Police Station, granting regular bail to the petitioner under Sec.437 of the Cr.P.C., subject to conditions mentioned therein. It is pointed out that the 2[nd] respondent was completely unaware about Ext.P1 order dated 08.04.2022, granting bail to the petitioner in the sixth and last crime, at the time of issuance of the detention order dated 27.04.2022. It is also pointed out that, though the detenu was under judicial remand at the time of submission of the report dated 07.04.2022 of the sponsoring authority, he could secure bail in the said last crime on the next day, i.e., 08.04.2022 and the 2[nd] respondent was completely unaware about the abovesaid crucial and relevant aspect. Further that, not even a copy of Ext.P1 bail order dated 08.04.2022 has been referred to and produced along with the detention order dated 27.04.2022 and so also, the efficacy or otherwise of the bail conditions in Ext.P1 order has not even been adverted to and considered in the impugned detention order. The petitioner would place reliance on the dictum laid down by the W.P. (Crl) No.1130 of 2022 8 Division Bench of this Court in decisions as in _**Mohanan v. State of Kerala & Others**_ [2014 KHC 3501, paras 13 & 14 thereof], etc. 14. It is true, that the detenu was under judicial remand in the sixth and the last crime at the time of submission of the report dated 07.04.2022, issued by the 3[rd] respondent-Sponsoring authority, inasmuch as he was under judicial remand in that case since 13.03.2022 onwards. But, one day after the submission of the report dated 07.04.2022 of the Sponsoring authority, the detenu could secure bail in the said last crime, as per order dated 08.04.2022. The fact relating to the issuance of Ext.P1 bail order was a highly crucial and relevant factual aspect in the matter. The issuance of Ext.P1 bail order should certainly have been within the cognizance of the Police authorities. For reasons which are not known, the 3[rd] respondent may not have communicated the fact relating to the issuance of Ext.P1 bail order to the 2[nd] respondent. As to how it was not communicated to the 2[nd] respondent is not a matter that concerns this Court. The incontrovertible factual aspect of the matter is that the 2[nd] respondent was completely unaware about Ext.P1 bail order dated 08.04.2022, at the time of issuance of the impugned detention order dated 27.04.2022. W.P. (Crl) No.1130 of 2022 9 15. Not even a copy of Ext.P1 bail order was referred to and produced along with the detention order dated 27.04.2022. Needless to say, the efficacy or otherwise of the bail conditions appended to Ext.P1 order has not even been remotely considered by the 2[nd] respondent, at the time of issuance of the impugned detention proceedings. In a similar case, the Division Bench of this Court in _**Mohanan** v._ _**State of Kerala & Others**_ [2014 KHC 3501], has held, in para No.14 thereof, that neither the reports under Sec.3(1) nor the detention order passed under Sec.3(2) of the Act contain any reference to the bail order passed by the trial court in that case and so also, there is no finding in the said detention order that bail conditions imposed therein are insufficient to prevent the detenu from committing further anti-social activities. Hence, the Division Bench of this Court held that the impugned detention order in that case suffers from the vice of non-application of mind, rendering it illegal and unconstitutional and hence, unsustainable and for those reasons the Division Bench of this Court has set aside the impugned detention order in that case. Para No.14 of _**Mohanan**_ ’s case supra [2014 KHC 3501], reads as follows:- _“14. In so far as this case is concerned, neither the reports made under Section 3(1) nor the detention order passed under Section_ W.P. (Crl) No.1130 of 2022 10 _3(2) of the Act contain any reference to Ext.P9 bail order passed by the trial court nor a finding that the conditions imposed therein are insufficient to prevent the detenu from continuing the anti-social activities. In other words, the detention order now impugned before us suffers from the vice of non application of mind rendering it illegal, unconstitutional and hence unsustainable. For these reasons, we are constrained to set aside Ext.P3 order of detention.”_ 16. We are almost confronted with a similar or identical situation in the present case. 17. When the detenu was already released on bail, the said crucial and relevant aspect should have been within the knowledge of the 2[nd] respondent-Detaining authority. 18. On the other hand, the detaining authority has proceeded on the premise, as if the detenu was under judicial remand, even as on the date of issuance of the detention order dated 27.04.2022. 19. Hence, we are of the considered view that the detenu is entitled to succeed in this case, in view of the abovesaid aspects. 20. The impugned detention order dated 27.04.2022 was executed on 06.08.2022 and the period of six months therefrom is upto 05.02.2023. We are told by both sides that, in view of the subsequent developments and due to the expiry of the period of operation of the impugned detention order, the detenu has already been released from detention. 21. However, we are told that the impugned detention order W.P. (Crl) No.1130 of 2022 11 dated 27.04.2022 is the first detention order passed under Sec.3 of the Act against the present detenu. Hence, only if, the first detention order is treated as a legally valid order can the second detention order under the above Act be extended up to one year. If the first detention order is invalidated by the court, then the same has to be treated as an invalid order and the subsequent order, that may be passed, will have to be treated as a fresh order. Hence, it is to be only observed that, in case the respondents propose to pass a subsequent detention order against the detenu under the Act, then the same will have to be treated as a fresh order and the currency of which, therefore, cannot exceed more than six months, etc., see _**Vishnuja** v._ _**State of Kerala**_ [2018 (1) KLT 978 (DB), para No.24 thereof]. 22. The upshot of the above discussion is that the impugned detention order is liable for interdiction at the hands of this Court, in exercise of the powers in judicial review. In that view of the matter, it is ordered that, the impugned detention order No.DCKNR/4076/ 2022/SS1 dated 27.04.2022, issued by the 2[nd] respondent-District Collector, Kannur, as confirmed by the impugned Ext.P4 G.O.(Rt) No.2993/2022/HOME dated 27.10.2022, issued by the respondent- W.P. (Crl) No.1130 of 2022 12 State Government in the Home department, will stand quashed and set aside. 23. No other orders and directions are called for. With these observations and directions, the above writ petition (criminal) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** Sd/- **ZIYAD RAHMAN A.A., JUDGE** Skk//08032023 W.P. (Crl) No.1130 of 2022 13 ## **APPENDIX OF WP(CRL.) 1130/2022** ## **PETITIONER'S EXHIBITS:** EXHIBIT P1 A COPY OF THE ORDER DT.8.4.2022 IN CMP. NO.1536/2022 PASSED BY THE LEARNED JFCM COURT-II, KANNUR. EXHIBIT P2 A COPY OF THE PROCEEDINGS FILED BEFORE THE SUB DIVISIONAL MAGISTRATE COURT, THALIPARAMBU DT.29.9.2021. EXHIBIT P3 A COPY OF THE NOTICE DT.4.7.2022 BEARING NO. DCKNR/4076/2022/SS1 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P4 COPY OF THE ORDER DT.27.10.2022 PASSED BY THE HOME (SSA) DEPARTMENT. ADDL. EXHIBIT P5 COPY OF PRELIMINARY REPORT FILED BEFORE THE COMMISSIONER OF POLICE, KANNUR CITY FOR THE ACTION U/S 3(1) OF KAAPA ACT **RESPONDEDNTS' EXHIBITS:** NIL