Sasikala v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942** **WP(Crl.).No.42 OF 2021** ## **PETITIONERS** **SASIKALA AGED 53 YEARS** **W/O RAJENDRAN, AMBALAMTHATTU HOUSE, PUTHALAM, PAYATTUVILA P.O.NEYYATTINKARA TALUK, THIRUVANANTHAPURAM DISTRICT, PIN-695 501.** ## **BY ADV. SRI.N.P.PRAJEESH** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO**| ||**GOVERNMENT, HOME DEPARTMENT, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.**| |**2**|**THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,**| ||**THIRUVANANTHAPURAM COLLECTORATE, KUDAPPANAKKUNNU**| ||**P.O.THIRUVANANTHAPURAM P.O.THIRUVANANTHAPURAM,**| ||**PIN-695 043.**| |**3**|**THE SUPERINTENDENT OF PRISON,**| ||**CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM,**| ||**PIN-695 012.**| **R1-3 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R1-3 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** ## **GOVERNMENT PLEADER SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18-03-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(Crl.)No.42 of 2021 2 ## **JUDGMENT** ## **Dated : 18[th] March, 2020** ## M.R.Anitha, J. Petitioner, the mother of the detenu approached this Court challenging the detention order passed by the second respondent on various grounds. According to the petitioner there is delay, in passing the order, from the last prejudicial act and also in executing the order of detention. The approval of the Government is also delayed. The reference to the Advisory Board by the Government has not been communicated to the detenu or to the Jail Superintendent and hence there is violation of Sections 9 and 10 of the Kerala Anti Social Activities (Prevention) Act, 2007 (for short, 'KAA(P)A'). The confirmation by the Advisory Board and the Government have not been communicated to the detenu and that has caused prejudice to him. Lastly it is urged that the documents relied on by the detaining authority were not supplied to the detenu. The petitioner relies on the judgment of a Full Bench of this Court in Abidha Beevi v. State of Kerala 2013 (1) KHC 308 wherein four months delay in passing an order of detention, from the last prejudicial act was held to raise suspicion as to the subjective satisfaction having been correctly arrived at. The detention order W.P.(Crl.)No.42 of 2021 3 is further vitiated for not specifying the period of detention. 2. The learned Government Pleader on the other hand would contend that none of the grounds alleged by the petitioner are sustainable either in law or on facts and there is no delay in passing the order or its execution. The petitioner is involved in grievous crimes viz; u/s.302, 307 and 308IPC. The delay of four months caused in passing the detention order after the last prejudicial act is of no relevance in the petitioner's case since he was in judicial custody during the relevant time. All the procedures as contemplated under Sections 9 & 10 have also been strictly complied with and hence no interference is called for. 3. Ext.P1 is the detention order passed under Section 3(1) of the KAA(P)A by the second respondent, which refers to eight criminal cases: |**Sl.**<br>**No.**|**Crime Nos.**|**Name of Police**<br>**Station**|**Date of**<br>**occurrence**|**Offences alleged**|&<br>of| |---|---|---|---|---|---| |1|833/2014|Kanjiramkulam|08/09/2014|506(i), 324, 452, 427, 354 r/w. 34 of IPC|| |2|940/2017|Vizhinjam|08.05.2017|147, 143, 148, 149, 294(b), 120(B), 324, 307<br>302 IPC and S. 27 of the Arms Act|| |3|1185/2018|Kanjiramkulam|17.11.2018|447, 294(b), 341, 326, 308 & 34 IPC|| |4|318/2019|Kanjiramkulam|14.11.2020|294(b), 341, 452, 506(ii), 324, 307 IPC and 27<br>the Arms Act|| |5|28/2020|Neyyattinkara|06.01.2020|451, 294(b), 382, 506(ii) & 34 of IPC|| W.P.(Crl.)No.42 of 2021 4 |||||| |---|---|---|---|---| |6|910/2020|Kanjiramkulam|27.05.2020|341, 294(b), 323, 324, 308 & 34 IPC| |7|1002/2020|Kanjiramkulam|22.06.2020|294(b), 341, 323, 506(ii), 427, 308 & 34 IPC| |8|1085/2020|Kanjiramkulam|12.07.2020|447, 294(b), 506(i) IPC and 27 of the Arms Act| The copies of FIR with Final Report of the above crimes are enclosed with the records produced from the side of respondents. Registration of the above crimes during 2014-2020 by the competent police officers would bring the petitioner under the definition of 'known-rowdy' coming within the sweep of Section 2(p) of the KAA(P)A. The registration of the above crimes and the nature of offences under which the crimes have been registered, would show the involvement of the detenue in anti-social activities coming within the purview of Section 2(a) of KAA(P)A. The records also show that S.107 CrPC proceedings was initiated against the detenu in M.C.No.97/2019 of the Sub Divisional Magistrate Court Thiruvananthapuram and he executed a bond on 18.09.2019. Even thereafter he is involved in three crimes. Hence the passing of the impugned detention order against the petitioner as 'known-rowdy', is perfectly in order. 5 W.P.(Crl.)No.42 of 2021 6. The first contention of the learned counsel is with regard to the delay in passing the detention order after the last prejudicial act on 11.07.2020, which according to the learned counsel is after four months. The learned counsel places reliance on **Abidha Beevi v. State of Kerala and Ors. [2013 (1) KHC 308]** . In that case, it was held that delay of more than 4 months in passing detention order after last anti-social activity casts doubt on the genuineness of the subjective satisfaction arrived at by the detaining authority and is fatal to the order of detention. 8. **Abdul Rahman v. State of Kerala (1989 (4) SCC 741)** has been quoted in **Abidha Beevi** wherein a similar question arose as to whether prejudicial activities of a person against whom an order of detention is passed, has to be proximate to the time when the order is made. It was held that the live link between the last prejudicial act and the purpose of detention depends on the facts and circumstances of each case. It was held that no hard and fast rule can be precisely formulated, that would be applicable under all circumstances and no exhaustive guidelines can be laid down in that behalf. It was further held that when there is undue and long delay between the prejudicial activities and the detention order, a W.P.(Crl.)No.42 of 2021 6 Court has to scrutinize whether the Detaining Authority has satisfactorily examined such delay and afforded a tenable and reasonable explanation as to why such delay was occasioned. Further the Court has to investigate whether the casual connection has been broken in the circumstances of each case. 9. The fact situation of this case is peculiar because , the detenue in this case was under confinement during the whole period of four months. Ext.P1 order shows that the detenue is involved in very serious and heinous crimes involving 302, 307, 308, 354 etc. The detention order specifically notice the fact that the detenue was in judicial custody and that the bail applications filed in two crimes were dismissed and that there were efforts made to file further applications for bail. It has also been observed that the detenue is a history sheeter and is a person against whom proceedings under Section 107 of the Cr.P.C had been taken. The Detaining Authority was of the opinion that if the detenue is released on bail he would involve in other crimes. The order passed after four months of the last prejudicial activity in the present case is not fatal and it cannot be said that the live link was broken since it was by reason of the judicial custody that the detenue did not involve in any further crimes. 10. The next argument is with regard to the delay of four W.P.(Crl.)No.42 of 2021 7 days in executing the order of detention despite the detenue being in judicial custody. In this case the detenue was under confinement and hence permission of the court had to be obtained before the arrest of the person who is under Judicial custody. The delay of 4 days caused in execution of the order cannot be found to be inordinate. 11. Further the learned counsel urged violation of Secs 9 and 10, since the approval of the Government was delayed and not communicated to him. It is also argued that the reference to the Advisory Board was not intimated to him. On perusing the file produced from the side of the respondent, page No. 579 is the order of the Government dated 09.12.2020 approving Ext.P1 order of detention dated 23.11.2020. Since Saturdays were also declared holidays due to Covid 19 Protocol, the approval made by the Govt. on 9.12.2020 is on the 12 working day, within the time stipulated under Sec.3(3) of the KAA(P)Act. Sec.9 provides for reference to the Advisory Board within three weeks from the date of detention. Respondents' file would show that the Government placed the Detention Order before the Advisory Board on 16.12.2020 as per the letter enclosed with page No.591. That is with in the stipulated time of three weeks from the date of detention. Page No.593 would show that the report of W.P.(Crl.)No.42 of 2021 8 the Advisory Board was forwarded to the Government on 23.01.2021. 12. Section 10 provides that the Advisory Board shall submit a report on reference of a matter by the Government under Sec.9 within a period of nine weeks from the date of detention. Detention was from 27.11.2020. Hence the report of the Advisory Board to the Government is within the period of nine weeks as stipulated under Sec.10(1) and the report of the Advisory Board is also to the effect that there is sufficient cause for the detention of the detenue in preventive detention as done by the Authorized Officer. The Government Order dated 9.2.2021 would further show that the Government confirmed the preventive detention passed against the detenu under Sec.10(4) of KAA(P)A . There is no particular time prescribed for the Government to confirm the detention on receipt of the report of the Advisary Board. It has to be passed expeditiously after getting the report is the settled law (Sarojini v Union of India 2009(4) KLT 436 DB). So the order of confirmation passed under Section 10 (4) on 8.2.2021 also is not a belated one. The entire procedure adopted by the authorities are in strict compliance of the provisions of the KAA(P)A. 13. There is no mandate that the detenu should be W.P.(Crl.)No.42 of 2021 9 informed when the reference is made to the Advisory Board. Section 10 of the KAA(P) A which deals with the procedure of Advisory Board and further action provides that Advisory Board to which a reference is made shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government or from the person concerned and if in any particular case it considers necessary so to do or if the person concerned desires to be heard in person; after hearing him in person prepare a report. So there is no mandate u/s.10 to the Advisory Board to hear the accused in the ordinary course when a matter is referred to it and only in particular case if the person concerned desires to be heard in person, only then, the Advisory Board is bound to hear him in person. 14. In this case, the file produced from the side of the respondent which contained the written representation of the detenu against the order of detention in page No.647 – 661 would show that he has not sought for a hearing before the Advisory Board. So legally the detenu cannot contend about his right of hearing since it has not been sought for by him while making the representation to the Advisory Board. W.P.(Crl.)No.42 of 2021 10 15. The learned counsel would further contend about the non supply of documents to the detenu, which has caused prejudice to him. The learned Government Pleader brought to our attention page No. 557 of the records received by the detenu with his specific signature which includes all the documents referred in the impugned order. The acknowledgment of receipt is dated 27.11.2020, the date on which the detenue was taken into custody for the purpose of preventive detention. 16. Yet another contention was regarding the period not having been specified in the detention order. The learned Public Prosecutor brought our attention to **P.K. Bose v. Secretary to Government and Ors. [2010 2 KLT 325** ] wherein it has been held that the Detaining Authority cannot prescribe the period of detention and it was for the Government to specify it. The Government has specified the period as 6 months in the order affirming the detention order which has also been served on the detenu and acknowledgment endorsed on it as revealed from the files. In **Makhan Singh V State of Punjab (AIR 1952 SC 27)** in clear terms the Apex Court held that the Detaining Authority is not expected to fix the period of detention under the Act.So also in **Devaki V State of Tamilnadu (AIR 1990 SC 1086)** Apex Court observed that the Act nowhere requires detaining W.P.(Crl.)No.42 of 2021 11 Authority to specify the period for which the detenu is required to be detained. An order of detention is not rendered invalid or illegal in the absence of such specification. So the contention to the contra is not acceptable. 17. Based on the above, we do not find any justifiable reason to interfere with the impugned order. Accordingly the writ petition stands dismissed. Sd/- ## **K. VINOD CHANDRAN Judge** **Sd/-** **M.R.ANITHA Judge** Shg/Mrcs W.P.(Crl.)No.42 of 2021 12 ## **APPENDIX** ## **EXHIBITS** **EXHIBIT P1 TRUE PHOTOCOPY OF THE ORDER PASSED BY THE 2ND RESPONDENT DATED 23.11.2020 EXHIBIT P2 TRUE PHOTOCOPY OF THE GROUNDS OF DETENTION DATED 23.11.2020 EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 9.12.2020**