Sahalap.P v. State of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR. JUSTICE G.GIRISH MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946`** ## **`WP(CRL.) NO. 686 OF 2024`** ``` PETITIONER: ``` ``` SAHALAP.P AGED28YEARS C/OMUHAMMADASHARAFK.T.,BEYTHULBICHAYI, KUZHIMBATTIL,PARAMMEL,PERUMANNAP.O., KOZHIKODE,PIN-673019 ``` ``` BYADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMISHANKAR NANCYMOLP. ANANDHUP.C. NEETHU.G.NADH CIYAE.J. ``` ## **`RESPONDENTS:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEADDITIONALCHIEF SECRETARYTOGOVERNMENT,HOMEAND VIGILANCEDEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM, PIN-695001 ``` - **`2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE MALAPURAM DISTRICT, PIN - 676505`** - **`3 THE DISTRICT POLICE CHIEF MALAPURAM DISTRICT, PIN - 676504`** - **`4 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,`** W.P (Crl.) No. 686 of 2024 :2: ## **`ELAMAKKARA, PIN - 682026`** ``` 5THESUPERINTENDENTOFJAIL CENTRALJAIL,VIYYUR,PIN-670004 ``` ``` BYADVS. ``` ``` ADVOCATEGENERALOFFICEKERALA ADDL.DIRECTORGENERALOFPROSECUTION(AG-11) ``` ``` OTHERPRESENT: ``` ## **`SRI ANAS K A, SENIOR PUBLIC PROSECUTOR`** ``` THISWRITPETITION(CRIMINAL)HAVINGCOMEUPFORADMISSION ON29.07.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P (Crl.) No. 686 of 2024 :3: ## **J U D G M E N T** ## **Raja Vijayaraghavan, J.** The petitioner is the wife of Sri. Firdose, against whom the 2nd respondent issued Ext.P1 order of detention under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity). The above order is under challenge in this writ petition. 2. It is based on the proposal submitted by the District Police Chief, Malappuram on 15.4.2024 showing the involvement of the detenu in six cases during the past four years that the proceedings under the KAAPA were initiated by classifying him as a ‘Known Rowdy’ as defined under Section 2(p)(iii) of the Act. The cases in which the detenu got involved and their stage are as under: |**Sl.**<br>**No.**|**Crime No.**|**Police Station**|**Complaint**<br>**Date**|**Sections involved**|**Status of**<br>**case**| |---|---|---|---|---|---| |1|992/19|Thalassery|18.09.2017|21(a) of the NDPS Act|Convicted on the<br>accused pleading<br>guilty| |2|387/19|Kannur Town|24.03.2019|21(ii) B, 29 of NDPS Act.|Pending as<br>SC 161/2019| |3|507/21|Kannapuram|03.08.2021|379 IPC|Pending as<br>CC 564/2021| |4|1009/22|Kannur Town|02.08.2022|379 IPC|Pending as<br>CC 1071/22| |5|206/24|Kannur Town|17.2.2024|21(a) of NDPS Act|Investigation| W.P (Crl.) No. 686 of 2024 :4: From the detention order, it appears that earlier an externment order under Section 15(1) of the Act was passed against the detenu on 9.10.2023. While the order was in force, he got involved in Crime No. 456/2024 on 10.4.2024. It was in the said circumstances that a fresh proposal was submitted on the premise that the detenu was continuously involved in anti-social activities and that his acts were prejudicial to the maintenance of public order warranting the initiation of proceedings under the KAAPA. The records also reveal that his name was earlier included in the Rowdy history sheet and thereafter, proceedings were initiated against the detenu under Section 107 of the Cr.P.C. It was after the execution of Bond to keep the peace that he got involved in Crime No. 206 of 2022, 540 of 2023, and 456 of 2024. It is also seen from the detention order that while granting bail in the earlier cases in which he got involved, a specific condition was imposed that he shall not be involved in any offence while on bail. Despite there being such a condition, the detenu got himself involved in subsequent crimes. The detaining authority has also noticed that he was arrested in Crime No. 456 of 2024 on 10.4.2024 and he was in judicial custody when the proposal was submitted. It is stated therein that if the detenu secures bail, he may continue to perpetrate W.P (Crl.) No. 686 of 2024 :5: anti-social activities, and to prevent the same, initiation of proceedings under KAAPA was warranted. 3. Sri. M.H. Hanis, the learned counsel appearing for the petitioner, submitted that insofar as Crime No. 456 of 2024 is concerned, relevant records were not placed before the detaining authority. According to the learned counsel, though in **Stenny Aleyamma Saju v. State of Kerala and Ors.[1]** , a Full Bench has held that the filing of a final report under Section 173 (2) of the Cr. P.C is not a prerequisite to invoke the power under Section 3 of the KAAPA, it has been clarified that mere registration of the FIR is not enough and something more is necessary to meet the requirements under the statute, so as to record the objective as well as subjective satisfaction. The wound certificate of the victim has not been produced before the detaining authority to enable the said authority to completely satisfy itself about the gravity of the crime. He would point out that in the order, the date of crime is wrongly mentioned which discloses that there is total non-application of mind. If the aforesaid crime is excluded, then there will not be any live link between the order of detention and the prejudicial activity. It is > 1 [2017 (3) KHC 517] W.P (Crl.) No. 686 of 2024 :6: further submitted that Crime No. 79 of 2019 and Crime No. 465 of 2021 involved only minor offences which have no penchant for causing disruption to the public order. Referring to the detention order, it is submitted that the overt acts of the detenu and his involvement have not been mentioned in most of the cases. It is further submitted that there is a delay of one month in passing Ext.P1 order and the last prejudicial activity. It is finally submitted that the detenu had submitted a representation on 18.6.2024, however, the same has not been considered. 4. Sri. K.A.Anas, the learned Senior Government Pleader, submitted that the contentions raised by the learned counsel are without basis. It is pointed out that the detenu is involved in six cases out of which, the final report has been laid in five cases. In that view of the matter, it cannot be said that the detaining authority has not objectively satisfied the pre-requisites of passing an order of detention. It is further submitted that the crimes in which the detenu is involved are grave in nature. It is further pointed out that it was during the period when the externment order was in force that the detenu has got himself involved in Crime No. 456 of 2024 involving offences inter alia under Section 307 of the IPC. W.P (Crl.) No. 686 of 2024 :7: 5. We have considered the submissions advanced. 6. The first contention of the petitioner is that Crime No. 456 of 2024 regarded as the last prejudicial act ought to have been excluded. The main contention is that the relevant records were not placed before the detaining authority and in that view of the matter the parameters laid down in Stenny (supra) will not be satisfied. Of course, in **Stenny** (supra), the Full Bench of this Court, while holding that filing of the charge sheet under Section 173 (2) of the Cr.PC was not necessary to invoke the power to pass an order under Section 3(1) had held that the mere registration of FIR is not enough and something more is necessary which is collected by the Investigating Officer during the course of the investigation. We find that the allegation in the said case is that the detenu intercepted the informant while he was travelling on a bike and stabbed him with a knife on his back. The detention order discloses that the sponsoring authority had produced before the detaining authority the records including the FIR, FIS, Statement of witnesses, Arrest Memo, Remand Report, and also the affidavit of the Investigating Officer showing the involvement of the detenu. We are of the view that the contention of the petitioner that the aforesaid crime was liable to be excluded for failure to comply W.P (Crl.) No. 686 of 2024 :8: with the parameters laid down in **Stenny** (supra) cannot be sustained. 7. We are not impressed with the contention of the learned counsel that the offences in which the petitioner got involved are minor offences. Crime No. 206 of 2022 and Crime No. 540 of 2023 of the Thenjipalan Police Station are cases registered interalia under Section 308 of the IPC. All these crimes were committed violating the conditions passed by the jurisdictional court while granting bail. Furthermore, we find that an earlier order under Section 15(1) of the KAAPA had been issued against the petitioner and it was during its validity that the last prejudicial activity was committed. The requirement under Section 2(p)(iii) of the Act has clearly been fulfilled. 8. We are not impressed with the contention that the fact that the detenu was undergoing incarceration was not considered. We find that the detaining authority was aware of the fact that the detenu was undergoing incarceration in connection with Crime No. 456 of 2024 and they were of the opinion that there was every likelihood that the detenu may file an application for bail, and in that event, he was likely to be released. As held by the Apex Court in **Senthamilselvi V. State of Tamil Nadu & Anr[2]** , the only requirement is that the > 2 [(2006) 5 SCC 676] W.P (Crl.) No. 686 of 2024 :9: detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. In the case on hand, the awareness is noted in the order. That is the subjective satisfaction of the authority and in normal circumstances, the same cannot be interfered with. 9. The next contention is as regards the delay of one month in passing the order of detention. 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. If there is an undue and long delay between the prejudicial activity and the making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. 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** (supra)]. In the case on hand, the last prejudicial act was committed by the detenu on 10.04.2024 and the detention order was passed on 06.05.2024, in less than a month. We are of the view that there is no inordinate delay in passing the order of detention. 10. The last contention is with regard to the non-consideration W.P (Crl.) No. 686 of 2024 :10: of the representation submitted by the detenu. No materials have been produced before this Court to substantiate that the representation has in fact been submitted and no such contention has been raised in the Writ Petition also. In view of the discussion above, the petitioner has not made out any case for interference. This Writ Petition is dismissed. Sd/- **RAJA VIJAYARAGHAVAN V JUDGE** Sd/- **GIRISH.G JUDGE** PS/1/8/2024 W.P (Crl.) No. 686 of 2024 :11: ## **`APPENDIX OF WP(CRL.) 686/2024`** ``` PETITIONEREXHIBITS ``` ``` Exhibit-P1ATRUECOPYOFTHEORDER NO.DCMPM/4489/2024-S1DATED06.05.2024 OFTHE2NDRESPONDENT ```