IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI
TUESDAY, THE 10TH AUGUST 2010 / 19TH SRAVANA 1932
WP(Crl.).No. 227 of 2010(S) ---------------------------
PETITIONER(S):
---------------
SHAHUL HAMEED, S/O.AYAMU, AGED 55 YEARS, THANNI THURAKKAL, PALAPPETTY, VELIYANGOD, MALAPPURAM DISTRICT.
BY ADV. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR
## RESPONDENT(S): COMPLAINANT
--------------------------
1. STATE OF KERALA,
REP. BY THE ADDL. CHIEF SECRETARY, (HOME AND VIGILANCE), THIRUVANANTHAPURAM.
2. THE DISTRICT COLLECTOR AND DISTRICT
MAGISTRATE, MALAPPURAM, AUTHORISED OFFICER, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT 2007.
3. THE SUPERINTENDENT OF POLICE, MALAPPURAM DISTRICT.
4. THE DEPUTY SUPERINTENDENT OF POLICE, TIRUR.
5. THE SUB INSPECTOR OF POLICE,
PERUMBADAPPU, MALAPPURAM DISTRICT.
SR.GOVERNMENT PLEADER SRI.K.RAVINDRA BABU
THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * ***
W.P.(Crl) No.227 of 2010
---------------------------------------Dated this the 10[th] day of August 2010
## **J U D G M E N T**
## **Basant,J**
The petitioner has come to this Court with this petition under Article 226 of the Constitution of India to issue a writ of habeas corpus to direct the production of his son, Shamnad, aged 22 years (hereinafter referred to as the detenu), who is being preventively detained in custody as per an order of detention dated 21/12/2009 (Ext.P1) passed by the second respondent under Section 3 of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the KAAPA).
2. The detenu is admittedly involved in eleven cases. Nine of them have admittedly been charge sheeted after the completion of investigation. The 3[rd] respondent, Superintendent of Police, submitted Ext.P2 report dated 17/10/2009 to the second respondent, the District Magistrate under Section 3(1) of the KAAPA. The second respondent, District Magistrate passed Ext.P1 order dated 21/12/2009. In execution of Ext.P1 order, the detenu was arrested on 20/03/2010. Ext.P3 information was
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furnished to the detenu. The order of detention was approved by the Government under Section 3(3) of the KAAPA vide Ext.P4 order dated 29/03/2010. We are informed that order confirming the detention for a period of six months from the date of detention has already been passed by the Government under Section 10(4) of the KAAPA.
3. According to the petitioner, the order of detention and the continued detention of the detenu under the said order are both not legally valid or justifiable. We have heard the arguments of the learned counsel for the petitioner as also the learned Government Pleader. The learned Government Pleader assails the impugned order of detention and continued detention on the following grounds:
i) There is inordinate delay between the date of the order of detention (Ext.P1 dated 21/12/2009) and arrest in execution of the order under Ext.P3 intimation of arrest dated 20/03/2010.
ii) In so far as the first of the 11 cases enumerated are concerned, there is no specific overt act alleged against the detenu.
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iii) Inso far as the second case is concerned, the same should not have been taken into reckoning and must have been excluded under proviso (ii) to Section 2(p).
iv) Cases 6 to 11 do all relate to incidents which took place on 22/02/2009 from 2.45 a.m to 4.45 a.m and should hence have been reckoned as part of the same transaction under clause (iii) of Section 2(p) of the KAAPA.
v) Cases 3 to 11 referred to in Ext.P1 should not have been taken into account and must have been eschewed from consideration in the light of proviso (v) to Section 2(p) of the KAAPA.
4. Ground No.i): Admittedly, report under Section 3(1) was received from the Superintendent of Police by the District Magistrate. That report is dated 17/10/2009. Order of detention Ext.P1 was passed on 21/12/2009. Arrest in execution of Ext.P1 order was admittedly effected only on 20/03/2010. The learned counsel for the petitioner submits that the gap of time between 21/12/2009 and 20/03/2010 - a period of three months is inordinate and unjustified. The nexus between the subjective satisfaction allegedly entertained by the detaining authority and
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the actual arrest must be held to be snapped because of the delay of three months in executing the order of detention. The learned counsel relies on precedents to contend that unless the order of detention is promptly executed, the same would vitiate the subjective satisfaction allegedly entertained by the detaining authority. Reliance is placed on the decisions in **Soja Beegum v. Additional Chief Secretary to Government, 2009(4) K.L.T.550** and **Mohanan K. v. Sub Inspector of Police [2010 (1) KHC 557].**
**5.** The learned Government Pleader immediately points out that such a plea has not been specifically raised at all in the writ petition. Only when the contention is raised, do the respondent get an opportunity to effectively make a reply to the contention. Such a contention having not been raised at all, the petitioner and the detenu are not entitled to take advantage of the elapse of three months between the date of the order of detention and the date of arrest in execution of the order of detention. The learned Government Pleader points out that the respondents have pleaded that the detenu was absconding and
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was not available for arrest in execution of the order of detention.
6. It is true that there is a gap of three months between the date of the order of detention and the date of arrest in execution of the order of detention. It has repeatedly been held that the question is not one of counting the number of days between the two events. The question is whether there has been any contumacious elapse on the part of the detaining/executing authorities which contributed to the delay in execution. In a case where the delay is attributable to refractory and dilatory conduct on the part of the detenu, no benefit can enure to the detenu on account of such alleged efflux of time between the order of detention and the date of its execution. In the instant case, there is not even an assertion that there was contumacious lapses on the part of the detaining/executing authorities that resulted in the delay in execution of the order of detention. On the contrary, we have the plea of the respondent that the detenu was absconding. We are not, in these circumstances, persuaded to agree that the alleged elapse of three months between the date of the order of detention and the date of execution of the
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order of detention can deliver any advantage to the detenu.
7. **Ground Nos.(ii) to (v):** Our attention has been
drawn to all the eleven cases relied on by the sponsoring/detaining authorities to entertain the twin satisfactions that the detenu is a known rowdy and that his detention is necessary to prevent him from indulging in anti social activities. We have been taken through all the eleven cases in detail. We have rendered our pointed attention to these cases.
8. The first contention raised in ground No.ii) is that in crime No.157/08, no specific overt has been alleged against the detenu. Specific overt act have been alleged against some of the accused; but no specific overt act has been alleged against the detenu herein. He has been sought to be made liable with the help of Section 34 of the Indian Penal Code. His presence and participation is alleged though specific overt acts against the victims are not alleged against the detenu. We have considered this contention. It is not the law at all that a person, who is said to be made liable culpably, must have committed any specific overt act before such a crime can be taken into reckoning for the
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purpose of entertaining either the former or the latter satisfactions under Section 3 of the KAAPA. Such absence of specific overt act may help a detenu to claim exclusion of cases under clause (iv) or clause (v) of the proviso to Section 2(p). But, so far as the first case is concerned, there is no contention even that the detenu was a member of the student community or a recognised political party and that the incident took place in connection with any act indulged in such capacity. So far as case No.1 is concerned, the said contention cannot help the detenu to exclude that case from consideration while evaluating either of the two satisfactions.
9. In Ground No.iii), it is contended that so far as case No.2 is concerned, the detenu is entitled to the protection of proviso (ii) to Section 2(p) of the KAAPA.
10. The relevant crime is crime No.158/08 of Perumbadappu police station. Though the incident was between the two neighbours, there is nothing to indicate that the said incident, which is referred to in the said crime, was essentially between neighbours consequent to any dispute between immediate neighbours. Moreover, even if this case were
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excluded from consideration, there are more than three other cases alleged against the detenu to bring him within the sweep of known rowdy under Section 2(p).
11. The 4[th] ground of challenge is that cases 6 to 11 are all part of the same transaction. They relate to six crimes registered on the early hours of 22/02/2009 between 3 a.m and 4.45 a.m. All the crimes are registered at the Perumbadappu police station. A perusal of the relevant details reveal that the six incidents took place at 2.45 a.m, 3 a.m, 3.30 a.m, 3.45 a.m, 4 a.m and 4.45 a.m on 22/02/2009. The incidents took place at different venues. The incidents that had taken place were all distinct and separate. The attack was on different houses on account of prior animosity. In any view of the matter, we are unable to agree that the said six incidents can be held to be not separate incidents. It cannot also be held that those six different incidents were part of the same transaction. Clause (iii) of Section 2(p) which insists that there must be three “separate incidents not forming part of the same transaction” is thus eminently satisfied by cases 6 to 11.
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12. In ground No.v), it is contended that proviso (v) to Section 2(p) must apply inasmuch as all these cases are cases in which the detenu allegedly got involved as a member of the National Democratic Front. The learned counsel for the petitioner argues that these cases are hence liable to be excluded under proviso (v) to Section 2(p).
13. To attract proviso (v) to Section 2(p), the detenu must be shown to be a member of a recognised political party. Is the N.D.F, a recognised political party? Nothing has been produced to show that such a recognised political party exists. There is no contention even before us that the NDF is a recognised political party. In these circumstances, proviso (v) to Section 2(p) cannot apply for that simple reason. Challenge on ground No.v) must, in these circumstances, fail.
14. No other contentions are raised. We are satisfied from the materials available that the detaining authority had entertained the former objective/threshold satisfaction and the latter subjective satisfaction satisfactorily. The order of detention and continued detention do not, in these circumstances, warrant any interference. The challenge fails.
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15. This writ petition is, in these circumstances,
dismissed.
**(R.BASANT, JUDGE)**
**(M.C.HARI RANI, JUDGE)**
jsr
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**R.BASANT & M.C.HARI RANI, JJ.**
.No. of 200
ORDER/JUDGMENT
19/07/2010
