Saleena v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ## **`THE HONOURABLE MRS. JUSTICE SOPHY THOMAS`** ``` THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 ``` ## **`WP(CRL.) NO. 592 OF 2022`** ## **`PETITIONER/S:`** ``` SALEENA AGED 54 YEARS W/O. THANGAL KUNJU, THEKATHIL VEETTIL, PERUMANTHAZHA, VARAVILA, CLAPANA VILLAGE, KOLLAM, PIN - 690525. BY ADV M.H.HANIS ``` ## **`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, KOLLAM DISTRICT, PIN - 691013.` - `3 THE DISTRICT POLICE COMMISSIONER, OFFICE OF THE DISTRICT POLICE COMMISSIONER, KOLLAM CITY, PIN - 691008.` - `4 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682026.` - `5 THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, VIYYUR, PIN - 670004. BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)` ``` SRI.K.A.ANAS-GP ``` ``` THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(Crl) No.592/2022 1 CR ## ALEXANDER THOMAS & SOPHY THOMAS , JJ. ================== ## WP(Crl) No.592/2022 ================== Dated this the 17[th] day of November, 2022 ## J U D G M E N T ## ALEXANDER THOMAS, J. The prayers in the aforecaptioned Writ Petition (Criminal), seeking for issuance of writs of Habeas Corpus and Certiorari to challenge the order preventively detaining the detenue in this case under Section 3(1) of the Kerala Anti-Social Activities (Prevention) KAA(P) Act, 2007 are as follows: “(i) call for the records leading to Ext.P1 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. (ii) Issue a writ of habeas corpus commanding the respondents to produce the body of the detenu, Ijass, aged 31 years, S/o. Thangal Kunju, Thekathil Veettil, Perumanthazha, Varavila, Clapana Village, Kollam, the son of the petitioner who is illegally detained in Central Prison, Viyur before this Hon’ble Court and set him at liberty forthwith. (iii) grant such other reliefs as this Hon’ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Criminal).” 2. Heard Sri. M.H.Hanis, learned Counsel appearing for the petitioner and Sri.K.A.Anas, learned Prosecutor appearing for the respondents. WP(Crl) No.592/2022 - : 2 :- 3. The mother of the detenue in this case has moved this WP(Crl). The brief of the relevant facts which are necessary for the disposal of this case are as follows: 4. The 3[rd] respondent District Police Chief (Sponsoring Authority) had initially submitted report dated 10.01.2022 and subsequently submitted an additional report dated 14.02.2022, recommending to the 2[nd] respondent District Collector cum District Magistrate (authorized detaining authority) that in view of the aspects mentioned in those reports, it is a fit case to enable the 2[nd] respondent to issue order under Section 3(1) of the KAA(P) Act, so as to detain the detenue to prevent him from committing further prejudicial activities as envisaged as per Section 2(a) of the above said Act. The case of the respondents is that taking into account those aspects mentioned in the Sponsoring Agency’s two reports, the 2[nd] respondent – authorized detaining authority has issued Ext.P1 order dated 21.03.2022, with the finding that the 2[nd] respondent is satisfied in view of the abovesaid materials that order should be issued to detain the petitioner under Section 3(1) of the Act so as to prevent him from committing further prejudicial activities. Further, 2[nd] respondent has forthwith communicated Ext.P1 detention order to WP(Crl) No.592/2022 - : 3 :- the 1[st] respondent State Government alongwith all requisite materials as envisaged in Section 3(3) of the Act. Further that, Ext.P1 detention order was executed with the formal arrest of the detenue on 30.03.2022. Thereafter, the 1[st] respondent State Government has issued order dated 08.04.2022 approving Ext.P1 detention order under Section 3(3) of the Act, which is within 12 days from the date of execution of the detention order, after excluding public holidays. Thereafter the 1[st] respondent State Government has referred the matter for the considered opinion of the 4[th] respondent Statutory Advisory Board as envisaged in Section 9 of the Act. The 4[th] respondent Advisory Board, after hearing the detenue, had given their report dated 19.05.2022, recommending to the 1[st] respondent State Government that in view of the aspects mentioned therein, there is sufficient grounds to preventively detain the detenue as per Ext.P1 order. Later, the 1[st] respondent State Government has issued GO(Rt) No.1505/2022/Home dated 30.05.2022, confirming Ext.P1 detention order as mandated in Section 10(4) of the Act. There are no serious disputes that the various statutory timelines prescribed as per the Act as in Section 3(3), which mandates forthwith communication to the State Government, 12 days time limit as per Section 3(3) for WP(Crl) No.592/2022 - : 4 :- approval of the State Government, 3 weeks for placing the matter before the Advisory Board as per Section 9, 5 days time limit as per Section 7(2) for communicating the grounds of detention and relevant documents to the detenu, 9 weeks time limit as per Section 10(1) for submitting the report of the Advisory Board to the Government etc have been complied in this case. The specific case of the respondents is that the detenu would fulfill the essential parameters of ‘known Goonda’ as per Section 2(o) read with Section 2(j) of the Act, for which two criminal cases registered against the petitioner of the requisite nature mentioned in that provision are required. The specific case of the respondents as made out in Ext.P1 detention order is that altogether 6 cases have been reckoned as against the detenue. The details of the 6 cases as mentioned in Ext.P1 detention order have been reiterated in paragraph no.6 on pages 3 to 5 of the counter affidavit dated 08.08.2022 filed by the 1[st] respondent State Government in this case. As there are no disputes regarding the details of the allegations in those 6 cases, the said details are quoted below which reads as follows: _The case is that on 06.11.2015, evening, due to enmity, the_ “Crime No. 1843/2015 of Oachira Police Station registered u/s 427, 447, 323, 324 & 34 of IPC WP(Crl) No.592/2022 - : 5 :- _detenu assaulted the complainant with an iron rod and damaged his shop which caused a loss of Rs. 6000/-. The detenu is the 1st accused in this case. After completing the enquiry, charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Karunagappalli and the case is pending trial before the Court as CC No. 49/16._ _(ii) Crime No.945/2018 of Oachira Police Station registered u/s 120(b), 395, 326, 427 & 216(a) of IPC._ _The case is that on 13.09.2018, early morning, while the complainant and his father was travelling in a Maruti Gypsy vehicle, the detenu and his gang blocked them by placing a car in the road across their vehicle, damaged the vehicle, assulted and caused grievous hurt to them and also robbed Rs. 30,000/- kept in that vehicle. The detenu is the 7th accused in this case. After completing the enquiry, charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Karunagappalli and the case is pending trial before the Court as CP No. 82/19._ _(iii) Crime No. 880/2019 of Oachira Police Station registered u/s 341, 294(b), 323, & 506 of IPC_ _The case is that on 07.09.2019, evening, due to enmity, the detenu restrained the complainant, called obscene words, caused bodily hurt and threatened him. After completing the enquiry, charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court, Karunagappalli and the case is pending trial before the Court as CC No. 967/19._ _(iv) Crime No. 1243/2019 of Oachira Police Station registered u/s 143, 147, 148, 294(b), 323, 324, 365, 506, 212, 216 & 149 of IPC and Section 27 of Arms Act_ _The case is that on 03.12.2019, night, due to enmity with the complainant, the detenu and his associates formed an unlawful assembly, called obscene words against the complainant, assaulted and injured him using sword, iron rod and plastic chair. Then while he returned from hospital after treatment, the gang restrained him by placing a car across his vehicle, forcefully entered him into the car, they threatened to kill him by placing a sword in his neck and after abduction got him out of the car near a petrol pump. The gang also reached the complainant's house while he was in the hospital, threatened his wife and created a terrific atmosphere there. The detenu is the 2[nd] accused in this case. After completing the enquiry, charge sheet was submitted before the Hon'ble Judicial First Class Magistrate Court,_ WP(Crl) No.592/2022 - : 6 :- _Karunagappalli and the case is pending trial before the Court as CC No. 3274/2020._ ## _V . Crime No. 809/2021 of Viyyur Police Station registered u/s 22 (a) of NDPS Act_ _The case is that on 04.12.2021, noon, the detenu went to the Viyyur, Sub Jail for visiting his friend, Athul Chandran, who was a prisoner in that prison and when the jail authorities examined the detenu, they seized 190 mg of MDMA, which was concealed under his footwear. The detenu is the 1st accused in this case. He was arrested and then released on station bail. The police also completed the investigation and submitted final report in the above case and now it is pending trial before the Hon'ble Judicial First Class Magistrate Court - 1,_ Thrissur _._ ## _(vi) Crime No. 135/2022 of Karunagappalli Police Station registered u/s 22 (b) r/w 29 of NDPS Act._ The case is that on 29.01.2022, night, while the complainant who is the Police Inspector of Karunagappalli Police Station and other police officers were inspecting the vehicles in Karunagappally - Sasthamkotta road, the detenu and his companion came in a maruti swift car and while the police enquired their journey details, they revealed their name details and one of the police official identified the persons in the car and on understanding the same the detenu and his companion gave up the vehicle and ran away from the spot. Subsequently, the police searched their car in the presence of independent witnesses and seized the purses belonging to the detenu and his companion containing 6.63 grams of MDMA, a dangerous Narcotic drug. The detenu who is the 1[st] accused was arrested on 03.02.2022 and admitted to judicial custody. The case is under investigation.” 5. So, there does not appear to be any serious dispute that the detenu could fulfill the essential parameters of ‘known Goonda’ as per Section 2(o)(ii) read with Section 2(j) of the Act. 6. Two grounds have been urged by Sri.M.H.Hanis, learned counsel appearing for the petitioner, to advance his plea for WP(Crl) No.592/2022 - : 7 :- quashment of the impugned detention order. The first contention is that there has been fatal delay in the execution of Ext.P1 detention order inasmuch as Ext.P1 detention order have been issued on 21.03.2022, whereas the accused was already in remand custody since 03.02.2022 and his bail application was also dismissed on 02.03.2022. Though, the detenu was already in remand custody in the jail concerned, the respondents has taken steps to execute Ext.P1 detention order by the formal arrest of the detenu, who was already in jail only on 30.03.2022. Hence, it is contended that in the facts and circumstances of the case, the delay of 9 days (i.e., the time gap between Ext.P1 detention order issued on 21.03.2022 and the recording of the formal arrest of the petitioner, for executing Ext.P1 order, on 30.03.2022) is fatal in this case. 7. The second ground urged by the petitioner is that the detenu was already arrested and remanded, in view of his involvement in the last and 6[th] case on 03.02.2022, his bail application was dismissed by the jurisdictional Magistrate Court concerned on 02.03.2022. Further that, the 2[nd] respondent detaining authority has not considered the crucial and relevant aspects with due materials in Ext.P1 detention order on the issue as to whether or not petitioner was likely to get bail WP(Crl) No.592/2022 - : 8 :- and therefore whether his preventive detention was really imperative and necessary and also as to whether the extreme draconian measure of preventive detention of the detenu was really necessary or imperative or whether the preventive detention was not called for as he was already in remand custody etc. 8. Both these contentions have been strongly opposed by Sri.K.A.Anas, learned Prosecutor appearing for the respondents. We would now consider each of these contentions separately. ## Contention A 9. It is common ground that Ext.P1 detention order has been issued on 21.03.2022. There is no dispute that the accused was arrested and remanded to custody in regard to his involvement in the 6[th] crime as early as on 03.02.2022. The aspect of the petitioner’s arrest and remand in the last case is also referred to in Ext.P1 detention order. The detenu’s bail application was dismissed by the learned Magistrate on 02.03.2022. So, since 03.02.2022, the detenu was already in the jail on account of his remand custody in the 6[th] case. Ext.P1 detention order was then been issued on 21.03.2022. The Prosecutor would point out that since the detenu was already in remand custody in regard to his involvement in the 6[th] case, formal WP(Crl) No.592/2022 - : 9 :- permission of the learned Magistrate was required. For that purpose, the SHO concerned had sought the formal permission of the learned Magistrate for arresting the petitioner who was already in jail for executing Ext.P1 detention order and the said formal request was made by the SHO before the learned Magistrate only 26.03.2022. Further, the learned Prosecutor would point out that the learned Magistrate had given the permission on 28.03.2022. It is only two days thereafter that Ext.P1 detention order had been executed by recording the formal arrest of the petitioner on 30.03.2022 who was already in jail since 03.02.2022. Learned Prosecutor would strongly contend that since formal permission of the learned Magistrate is required, the time gap in this case is only condonable and cannot be said to be one which would vitiate the proceedings. It is by now, well established that the issue as to whether the delay for executing the detention order was inordinate and thus fatal, is always a question of fact and depends upon the facts and circumstances of each case. As held in a recent verdict of the Apex Court rendered on 30.09.2022 in the case in Sushant Kumar Banik Vs. State of Tripura and Others (Criminal Appeal No.1708/2022, arising out of SLP (crl) No.6683/2022), (reported in 2022 SCC online SC WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** 1333), paragraph 13 & 14, preventive detention is devised to afford protection of the Society and the object is not to punish a man for having done something, but to intercept before he does it and to prevent him from doing and in view of the above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to remain vigilant and to keep their eyes skinned, but not to turn a blind eye in passing the detention order at the earliest from the date of the proposal and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority would defeat the very purpose of preventive detention and turn the detention order as a dead letter and frustrate the entire proceedings. Further, it has been held that in paragraph no.15 thereof that the adverse effect of delay in arresting the detenu has been examined by the Apex Court in a series of decisions and it was held therein in clear terms that an unreasonable and unnecessary delay in securing the detenu and detaining him vitiates the detention order etc. In the instant case, the main plea taken up by the petitioner is regarding the inordinate delay in executing Ext.P1 detention order. The fact that the detenu was already in remand custody and in jail since 03.02.2022 was well WP(Crl) No.592/2022 - : 11 :- known to the 1[st] respondent as can be seen from a reading of Ext.P1. After having issued Ext.P1 detention order on 21.03.2022, nothing prevented the 2[nd] respondent and the competent Police authorities concerned who are responsible for executing the order to immediately make the formal application before the learned Magistrate for grant of formal permission to record the arrest of the detenu who was already in jail, and to get orders in that regard. For aspects which cannot be appreciated, the competent authorities have sought to move the learned Magistrate with the formal application only on 26.03.2022. The learned Magistrate gave the permission on 28.03.2022. Thereafter, what may have to be done was only to immediately execute Ext.P1 detention order by recording the formal arrest of the detenu who was already in jail. Instead of that, the execution of Ext.P1 by recording the formal arrest of the detenu who was already in jail was effected only on 30.03.2022. In the facts of this case, we are of the view that the authorities concerned have not acted upon with due diligence in executing the detention order, in order to effectuate the averred objective of the measure of preventive detention, which is otherwise draconian. The abovesaid approach made in this case cannot be said to be serious and responsible course WP(Crl) No.592/2022 - : 12 :- of action. Hence, we are of the view that in the facts and circumstances of the present case, the delay in executing the order is fatal and hence, the impugned order is liable for interdiction. ## Contention B 10. The second ground urged by the petitioner is that the detenu was already in remand custody since 03.02.2022 and his bail application was duly rejected by the Sessions Court concerned on 02.03.2022. The two reports of the sponsoring authority are made on 10.01.2022 and 14.02.2022. Though, the factum of arrest and remand of the petitioner on 03.02.2022 in regard to his involvement in the 6[th] case is referred to in the additional report dated 14.02.2022 of the sponsoring authority as well as in Ext.P1 detention order, the crucial factum regarding the rejection of the bail application in the 6[th] case on 02.03.2022 is not even seen apprised to the 2[nd] respondent detaining authority. But the contention raised by the petitioner is that a reading of Ext.P1 detention order would clearly indicate that the 2[nd] respondent has not bestowed his consideration to the crucial and relevant aspect as to whether or not, the applicant was likely to secure bail in the 6[th] case and if so, whether the extreme draconian measure of preventive detention was really necessary or imperative as the WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** accused/detenu was already in jail or whether his detention was really called for and necessary. It is urged that for that purpose, such a consideration and opinion in that regard should have been rendered by the 2[nd] respondent on the basis of some minimal materials. In the instant case, the said crucial and relevant consideration are conspicuously absent and hence, the impugned order at Ext.P1 is liable for quashment. Per contra, Sri. K.A.Anas, learned Prosecutor would contend that the 1[st] and 2[nd] reports of the sponsoring authority was made on 10.01.2022 and 14.02.2022 and the fact regarding the arrest and remand of the detenu on 03.02.2022 has been made known to the 2[nd] respondent, which is also evident from Ext.P1 detention order. Further that, since the last report of the sponsoring agency was made on 14.02.2022, and the bail application was dismissed by the Sessions Court in the 6[th] case only on 02.03.2022, the same was not informed to the 2[nd] respondent. Further that, noncommunication of the dismissal of the bail order will not be fatal. Further, it is argued on facts that a reading of Ext.P1 detention order, more particularly, the last paragraph on internal page 13 on pages 13 & 14 of Ext.P1 detention order would clearly indicate that the aspect of the likelihood of the detenu being released on bail and the WP(Crl) No.592/2022 - : 14 :- necessity for preventive detention has been duly considered and adverted to therein. This contention is strongly opposed by counsel for the petitioner by delineating the factual aspects in that regard. It may be pertinent to refer to the contents of the relevant portion of last paragraph appearing on internal pages 13 & 14 of Ext.P1 detention order (see pages 23 & 24 of the paper book of this WP(Crl)) and the same reads as follows: “…………………………… അവസാന കുറ്റകൃത്യമായ അന്വേ ഷണത്തിലുള്ള ക്രൈ ം നമ്പർ 135/22 കേസിൽ . ജുഡീഷ്യൽ കസ്റ്റഡിയിൽ കഴിയുന്ന എതിർകക്ഷി ബഹു കൊല്ലം ജില്ലാ സെഷൻസ് കോടതിയിൽ സമർപ്പിച്ച ജാമ്യാപേക്ഷ. ടി ജാമ്യാപേക്ഷയിന്മേ ൽ കരുനാഗപ്പള്ളി . സ് ഷൻഹൗസ്ഓഫീസർബഹു കോടതിയിൽസമർപ്പിച്ച കാര്യവിവര പത്രിക എന്നിവയുടെ പകർപ പരിശ ോധിച്ചിട്ടുണ. ജുഡീഷ്യൽ കസ്റ്റഡിയിൽ കഴിയുന്ന എതിർകക്ഷി ജാമ്യത്തിൽ പുറത്തിറങ്ങിയാൽ വീണ്ടും കുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെടുവാൻ സാധ്യതയുണ്ടെന്നും സ്പ ോന്സറിങ് തൗതതോറിറ്റിയുടെ റി്പ്പോർട്ടിൽ കാണുന്നു. എതിർകക്ഷിയുടെമുൻകാലകുറ്റകൃത്യങ്ങൾ പരിശ ോധിച്ചാൽ ടിയാൽ ജാമ്യത്തിലിറങ്ങിയാൽ വീണ്ടും കുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെടുവാൻ സാധ്യതയുള്ളതിനാൽ കരുതൽ തടങ്ങളിൽ പാർപ്പിക്കേ ണ്ടത് അത്യാവശ്യമാണെന ബോധ്യമായിട്ടുള്ളതാണ്.” 11. Before dealing with the factual aspects in the supra paragraph of Ext.P1, it may be pertinent to refer to the legal position in this regard. After extensively considering the case laws on the subject, the 3 judge Bench of the Apex Court in the case, Dharmendra WP(Crl) No.592/2022 - : 15 :- Suganchand Chelawat Vs. UOI & Others [1990 (1) SCC 746] has held in paragraph No.21 thereof that the case laws on the subject rendered by the Apex Court would lead to the conclusion that an order of detention can be validly passed against a person in custody and for that purpose, it is necessary that the grounds of detention must show that (i) The detaining authority was aware of the fact that the the detenu is already in detention and (ii) there were compelling reasons to justify such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for preventive detention of a person already in custody implies that there must be cogent materials before the detaining authority on the basis of which it may be satisfied that (a) the detenue is likely to be released from custody in the near future and (b) taking into account, the nature of antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. It may be pertinent to refer to the decision of the 3 judge Bench of the Apex Court in Dharmendra Suganchand Chelawat Vs. UOI & Others supra [1990 (1) SCC 746], paragraph 21, which reads as follows: WP(Crl) No.592/2022 - : 16 :- “21. The decisions referred to above lead to the conclusion that an order for detention can be validly passed against a person in custody and for that purpose it is necessary that the grounds of detention must show that (I) the detaining authority was aware of the fact that the detenu is already in detention; and (ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. The expression “compelling reasons” in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be released from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities.” 12. So also it has been held by a 2 Judge Bench of the Apex Court in the case Abdul Sathar Ibrahim Manik Vs Union of India & Others [1992 (1) SCC 1] paragraph 4, that where the detaining authority has considered that the detenu was already in jail and further that there is likelihood of his being released, then it cannot be contended that there was no compelling necessity where the detaining authority has considered that the detenu was in jail and that there is likelihood of his being released on bail and that taking into account his antecedents, he is likely to indulge in prejudicial activities, if released on bail etc and therefore it is necessary to detain him in order to prevent him from engaging in such activities, it cannot be said that there was no compelling necessity for passing the WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** preventive detention order. In that case, the detaining authority in Abdul Sathar Ibrahm Manik’s case supra , the petitioner therein had placed reliance on the dictum laid down in the aforesaid 3 judge bench decision of the Apex Court in the case in Dharmendra Suganchand Chelawat Vs. UOI & Others supra [1990 (1) SCC 746]. A reading of paragraph no.4 of Abdul Sathar Ibrahim Manik’s case supra , [1992 (1) SCC 1] would clearly indicate that the detaining authority has specifically mentioned in the grounds of detention as follows: “I am aware that you are under judicial custody and possibility of your release on bail in the near future cannot be ruled out, also nothing prevents you from moving bail application in the jurisdictional court and getting released on bail”. 13. It was also found therein that the detaining authority has considered that the detenu was already in jail, but that there is likelihood of him being released on bail and after considering the antecedents of the detenu, the detaining authority held that the activities of the detenu would indicate that he is likely to indulge in such activities if released on bail and therefore it is necessary to prevent him from engaging in such activities. Hence it was held that therein that the contention that there was no compelling necessity for passing the detention order as envisaged in paragraph no.21 of WP(Crl) No.592/2022 - : 18 :- Dharmendra Suganchand Chelawat Vs. UOI & Others supra [1990 (1) SCC 746] does not arise in the facts of Abdul Sathar Ibrahim Manik’s case supra. 14. A reading of Dharmendra Suganchand Chelawat’s case (supra) [1990 (1) SCC 746], more particularly, paragraph no.21 would clearly indicate that the requirements are (1) that the detaining authority should be aware of the fact that the detenu is already in detention and (2) for establishing the compelling reasons justifying the detention, despite the fact that the detenu is already in detention, two other conditions should be satisfied, viz (a) the detaining authority should consider and be satisfied that detenu is likely to be released from custody in the near future and (b) taking into account, the nature of the antecedent activities of the detenu, it is likely that after his release from custody, he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities. 15. In the instant case, there is no dispute on either side that the fact that the detenu was already arrested and remanded to judicial custody in regard to his involvement in the 6th case as early as on 03.02.2022. That aspect of the matter has been made known to the 2nd respondent as can be WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** seen from a reading of Ext.P1. However, the crucial fact that the bail application in the 6th case was dismissed by the competent criminal court on 02.03.2022 was never apprised to the 2[nd] respondent by the sponsoring authority or any other competent Police authorities. Being aware about the dismissal of the bail application, may not be very relevant in all contingencies. In the facts of this case, the issue is as to whether the detaining authority has sufficient materials to consider and be satisfied that the detenu is likely to be released on bail in the 6th case. It was well-known to the 2[nd] respondent when Ext.P1 detention order was passed on 21.03.2022 that the detenu was already in jail since 03.02.2022. Hence, the abovesaid crucial and relevant aspects as delineated in paragraph no.21 of Dharmendra Suganchand Chelawat’s case (supra) [1990 (1) SCC 746] should have been effectively and properly considered by the 2[nd] respondent. Further, one of the vital factual inputs is as to whether any subsequent bail application is moved by the detenu and whether it has been allowed or disallowed. Therefore, the rejection of the bail application subsequently by the Sessions Court in the 6th case on 02.03.2022 was highly crucial and relevant factual input that should have been taken into account by the 2[nd] respondent to consider and WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** be satisfied as to whether or not the detenu/accused is likely to secure bail in the 6th case. If the said factual input regarding the dismissal of the bail application on 02.03.2022 had been duly considered by the 2[nd] respondent and based on that, if the 2[nd] respondent had taken a decision that still it is likely that the detenu may again get bail, by approaching a superior Court etc, the scenario could have been different. This crucial and relevant input regarding the dismissal of the bail application which is very relevant to decide the parameters envisaged in paragraph 21 of Dharmendra Suganchand Chelawat’s case (supra) [1990 (1) SCC 746] has been completely lost sight of by the second respondent, presumably because the 2nd respondent was not apprised of this crucial fact by the competent Police authorities concerned. Whatever be the reason in that regard, the non-consideration of this aspect would be really fatal in the decision making process. That apart, a reading of the afore quoted relevant portion of the last paragraph on internal pages 13 & 14 of Ext.P1 would clearly indicate that what has been taken into account and considered by the 2[nd] respondent is that the detenu was already remanded to custody on 03.02.2022 and that his bail applications has also been duly noted by the 2[nd] respondent. The crucial fact that the bail application was subsequently rejected on 02.03.2022, is not even known WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** to the 2[nd] respondent. So the assertion in Ext.P1 that the detenu is likely to get bail in that case is made without knowing that the bail application has already been rejected on 02.03.2022. So the said assertion made in Ext.P1 is without any materials and without ascertaining the above crucial fact of bail rejection. In other words, out of the 3 vital parameters of item no.(i), (ii)(a) and (ii)(b) as mentioned in paragraph no.21 of the Dharmendra Suganchand Chelawat’s case (supra), the 2[nd] respondent has even omitted to consider anything about the vital parameter in item (ii)(a) supra of paragraph 21 of Dharmendra Suganchand Chelawat’s case (supra). No mention whatsoever is made in Ext.P2 detention order on the basis of materials that the 2[nd] respondent is satisfied that the detenu is likely to get bail. Moreover, if the 2[nd] respondent had considered the crucial, vital, factual input that the bail application of the detenu has already been rejected as early as on 30.03.2022, then, possibly the conclusion of the 2[nd] respondent would have been different. Even if we assume that after taking into account the dismissal of the bail application, if the 2[nd] respondent had formed an opinion on the basis of some materials that still the detenu would have secured bail from some other superior courts etc, the scenario in question could have been possibly different. That is not the instant case. Moreover, we are sitting WP(Crl) No.592/2022 **==> picture [36 x 9] intentionally omitted <==** in judicial review which is examining only the decision making process and we are not sitting in appeal or the decision of the 2[nd] respondent as per Ext.P1. When relevant and vital inputs as above have not been taken into account, and when the crucial parameter that 2[nd] respondent should have been satisfied on the basis of some material that the detenu would have secured bail etc has not been considered at all, then the decision making process in that regard is vitiated. We are not assessing the possible outcome of the decision of the 2[nd] respondent, if all these relevant inputs have been duly taken into account. The fact that these vital and crucial relevant aspects have been eschewed out of consideration would lead to a situation that the decision making process would get vitiated. In that view of the matter, it is only to be held that the impugned Ext.P1 detention order is liable for interdiction at the hands of this Court in exercise of the powers under judicial review. For these reasons, paragraph 5 of the dictum laid down by the Apex Court in Union of India & Another v. Dimple Happy Dhakad (AIR 2019 SC 3428) will not apply to the facts and circumstances of this case, as therein the detaining authority was aware that the detenu was already in custody and further he was also aware that the bail application filed by the detenues were rejected etc. WP(Crl) No.592/2022 - : 23 :- 15. Accordingly, it is ordered that the impugned Ext.P1 detention order No.DCKLM/545/2022/M16 dated 21.03.2022 issued by the 2[nd] respondent District Magistrate cum District Collector, Kollam, as confirmed by the 1st respondent State Government in the Home Department as per GO(Rt) No.1505/2022/Home dated 30.05.2022 will stand quashed and set aside. Consequently, it is ordered that the respondents herein, more particularly, R5 (Superintendent of Central Jail, Viyyur, Thrissur District, where the detenu is detained) shall forthwith release the detenu in this case, Sri.Ijass, aged 31 years, S/o.Thangal Kunju, from detention, if his detention is not required in any other case. The Registry of this Court and the Secretary to the Office of the Advocate General will immediately forward copy of this judgment to the respondents herein for necessary information and immediate compliance. With these observations and directions the above WP(Crl) will stand finally disposed of. ## sd/ALEXANDER THOMAS, JUDGE sd/SOPHY THOMAS, JUDGE Nsd ## **`APPENDIX OF WP(CRL.) 592/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF ORDER NO. DCKLM/545/2022/M16 DATED 21.03.2022 OF THE 2ND RESPONDENT. Exhibit P2TRUE COPY OF THE REPRESENTATION DATED 10.05.2022 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. Exhibit P3TRUE COPY OF THE POSTAL RECEIPT DATED 11.05.2022. Exhibit P4TRUE COPY OF THE REPRESENTATION DATED 11.05.2022 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT. ```