SHALEER v. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOLLAM; THE DISTRICT POLICE SUPERINTENDENT, KOLLAM; STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE C.S. SUDHA TUESDAY, THE 24[TH] DAY OF JANUARY 2023 / 4TH MAGHA, 1944 WP(CRL.) NO. 835 OF 2022 ``` ## **`PETITIONER/S:`** ``` SHALEER AGED 49 YEARS S/O.KOYAKUNJU, OTA PULIVILA, KUREEPUZHA P.O., SAKTHIKULANGARA, KOLLAM DISTRICT, PIN - 691 601. BY ADVS. K.S.ARUN KUMAR AMRUTHA P S VIJAY SANKAR V.H. BINDU MOHAN SRUTHY UNNIKRISHNAN AISWARYA E J VETTIKOMPIL RAJEE P MATHEWS ANANDALAKSHMI SANKARARAMAN ``` ## **`RESPONDENT/S:`** ``` 1THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE KOLLAM, KOLLAM DISTRICT COLLECTORATE, CIVIL STATION RD, KAANKATHU MUKKU, KOLLAM, KERALA - 691 013. 2THE DISTRICT POLICE SUPERINTENDENT KOLLAM, DISTRICT POLICE OFFICE, MUNDAKKAL, KOLLAM, KERALA - 691 001. 3STATE OF KERALA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (HOME & VIGILANCE) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM , PIN -695 001. ``` ``` 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 24.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(Crl) No.835 of 2022 1 CR ALEXANDER THOMAS & C.S.SUDHA, JJ. ================== WP(Crl) No.835 of 2022 ================== Dated this the 24[th] day of January, 2023 J U D G M E N T ## ALEXANDER THOMAS, J. The afore captioned Writ Petition (Criminal) has been filed challenging the order of preventive detention passed under Section 3(1) of the Kerala Anti-Social Activities Prevention Act ordering that the detenue involved in this case be detained under Section 3(1) of the said Act so as to prevent him from committing further prejudicial anti-Social activities. 2. The petitioner herein is the father of the detenue involved in this case. 3. Heard Sri.K.S Arunkumar, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Prosecutor appearing for the respondents. The brief facts necessary for the disposal of this case is as follows: 4. The 2[nd] respondent District Police Chief, Kollam in his capacity as sponsoring authority has submitted the first report on WP(Crl) No.835 of 2022 - : 2 :- 14.04.2022, followed by an additional report on 16.07.2022, recommending to the 1[st] respondent District Collector cum District Magistrate, Kollam that in view of the factual aspects stated therein, the 1[st] respondent may invoke his powers under Section 3(1) of the KAA(P)A Act so as to detain the detenue, in order to prevent him from committing further prejudicial activities. The 2[nd] respondent Sponsoring authority has placed reliance on 7 crimes committed by the detenue for making the above recommendation. After consideration of the same, the 1[st] respondent – District Magistrate, who is the authorized detaining authority, has reckoned only 6 out of the said 7 crimes and has issued the impugned Ext.P1 detention order dated 20.08.2022, ordering the preventive detention of the detenue under Section 3(1) of the Act. The details of the 6 crimes reckoned against the detenue for the above purpose have been mentioned in Ext.P1 detention order and has also been re-iterated in paragraph 6, on pages 5 to 9 of the counter affidavit dated 28.10.2022, filed by the 3[rd] respondent State Government. There is no serious dispute that the detenue would satisfy the definitional parameters of “known rowdy”, as per Section 2(p)(iii) read with section 2(t) of the above Act. So also, there is no serious dispute that the respondent has broadly followed WP(Crl) No.835 of 2022 - : 3 :- the various statutory timelines mentioned in the above Act in the rendering of the impugned Ext.P1 detention order. 5. The counsel for the petitioner has raised essentially two grounds in support of his plea for quashment of the impugned detention order. The first ground is that, going by the nature of the allegations raised in the above 6 cases, more particularly in the last and the 6[th] crime, the subjective satisfaction arrived at by the 1[st] respondent, for invoking the discretionary powers under Section 3(1) of the Act, is without any substantial basis and therefore, the subjective satisfaction arrived at by the 1[st] respondent is liable to be interfered with. 6. The 2[nd] ground is that there has been inordinate and unexplained delay on the part of the 1[st] respondent in passing the detention order only as late as on 20.08.2022, eventhough the last prejudicial activity alleged against the detenue, is said to have been committed as early as on 28.03.2022. That, in view of the inordinate and unexplained delay in that regard, the live link between the last prejudicial activity and the purpose of detention, covered by Ext.P1, has been vitally snapped and hence, on this sole ground, the impugned proceedings, at Ext.P1, is liable to be interfered with by this WP(Crl) No.835 of 2022 - : 4 :- Court, in exercise of its powers of judicial review. 7. The learned Prosecutor has strongly opposed both the abovesaid pleas of the petitioner. We will deal with each of the contentions separately as given below. Contention A : No proper subjective satisfaction under Section 3(1). 8. In this case, it is common ground that in the first 3 crimes reckoned against the detenu, he could secure anticipatory bail from the Sessions Court concerned. None of these cases have disclosed any serious offences as per Sections 307, 308 etc. That, in the next two crimes, he was granted bail by the Police authorities concerned. The 5[th] crime was said to have been committed on 07.10.2019. Thereafter, the 6[th] and the last crime has been committed after a long gap of 29 months, inasmuch as the 6[th] crime is said to have been committed on 28.03.2022. The specific case of the petitioner is that the allegations pertaining to the 6[th] case are not very serious and appears to be a case of individual dispute between the petitioner and the lady victim therein, that the case set up in the FIR, in relation to the 6[th] case, is that the petitioner had animosity to the lady victim in that case, as her dogs had come into his property and killed his ducks. That, he had WP(Crl) No.835 of 2022 - : 5 :- gone to her property to question this and he had voluntarily caused hurt to her father and when she had questioned this, he had pushed her down and threatened her with dire consequences by brandishing a weapon and had abused her by using vulgar words and beat on her face etc. Petitioner would place reliance on the decision of this Court in Devika D.K., vs State of Kerala (Judgment dated 07.10.2022 in WP(Crl) No.588/2022), (2022 Livelaw (KER) 608) paragraph Nos.29 to 32 thereof. In the said case, the Division Bench of this Court has placed reliance on the decision of the Full Bench of this Court in paragraph 18 of Abdul Wahab Vs. State of Kerala (2017 (3) KLT 548) (FB), as well as the Division Bench decision of this Court in Uma Vs. State of Kerala, 2010 (4) KLT 511, paragraph 26 & 41. Therein, this Court had held that going by the nature of the allegations raised in that case, there was no proper application of mind by the detaining authority regarding the gravity of the offences raised therein etc. 9. After hearing both sides, we are of the view that we need not render any decision on this plea, as we are inclined to allow the second contention raised by the petitioner regarding the inordinate delay in the rendering of the impugned detention order. WP(Crl) No.835 of 2022 - : 6 :- Contention B: Inordinate delay in the rendering of the impugned detention order. 10. In this case, the last prejudicial activity in which the detenu has been involved, was on 28.03.2022. Indisputably, Ext.P1 detention order has been passed only on 20.08.2022 and there is a delay of 4 months and 23 days in that regard. Learned Prosecutor would submit that in the 6[th] case, the FIR has been registered on 29.03.2022. Thereafter, it appears that the detenu was not available for arrest and apprehension and that later, he could secure anticipatory bail on 27.05.2022. The first and the last reports of the sponsoring authority were given on 14.04.2022 and 16.07.2022 etc. That, some time was taken by the sponsoring authority for collecting the inputs for apprising the same to the detaining authority. The time gap between the last report of the sponsoring authority on 16.07.2022 and Ext.P1 detention order (20.08.2022) is only 35 days and that the delay in that regard has been duly satisfied. However, we note that when the detenu secured anticipatory bail in the sixth case on 27.05.2022, nothing prevented the sponsoring authority to immediately alert the detaining authority, after the registration of the WP(Crl) No.835 of 2022 - : 7 :- 6[th] FIR, if they had considered that the 6[th] crime committed by the detenu was very serious and grave, so as to warrant preventive detention proceedings under Section 3(1). Further, there is some force in the contention of the petitioner that the allegations in the sixth case are not very grave. Further, after committing the first five crimes, the detenu was served with an externment order under Section 15(1) of the KAAP Act, which was issued on 16.12.2019 and the Advisory Board later gave their report with a clear finding that no sufficient cause has been made out in issuing the adverse externment order under Section 15(1) and hence, the said externment order could not be enforced against the petitioner. It is thereafter, that the sixth crime has been committed by the detenu. If the said crime, committed by the detenu, was very serious and grave, then certainly, effective and immediate action would have been necessary, so that the live link between the last prejudicial activity and the purpose of detention is not snapped. That apart, the abovesaid pleas now urged by the Prosecutor do not find any place in the explanation given by the detaining authority, in regard to the delay. The sole explanation put forward by the detaining authority, in regard to the above delay in passing this detention order, is contained in paragraph no. 9 of Ext.P1 WP(Crl) No.835 of 2022 - : 8 :- ## detention order and the same reads as follows: “ അവസാന ം നം കുറ്റകൃത്യമായ ക്രൈ 227/22 നടന്നത് 28.03.22 നും പ്ര ൊപോസൽ 14.04.2022 അധിക സമർപ്പിച്ചത് നും വിവരറിപ്പ്പോർട തീയതി 16.07.2022 നുംആകുന്നു. അവസാന കുറ്റകൃത്യതീയതിയും കരുതൽ തടങ്കൽ ഉത്തരവ്തീയതിയുംതമ്മിൽവിശദ്ദീകരണംഇല്ലാത്ത കാലതാമസം ം ഇല്ലാത് സജീവബന്ധം . നിലനിൽക്കുന്നതുമാണ് എതിർകക്ഷിയുടെ കുറ്റകൃത്യങ്ങളുടെ സ്വഭാവവും കുറ്റകൃത്യത്തിൽ ഇരയായവരുടെ എണ്ണവുംതുടർന്നുംകുറ്റകൃത്യങ്ങളിൽ ഏർപ്പെടാവുന്ന സാധ്യതയും കണക്കിലെടുത് ിൽ എതിർകക്ഷിയെ കരുതൽതടങ്കലിൽപാർപ്പിക്കാതെ . മററ‌ മാർഗ്ഗമില്ലെന ബോധ്യപ്പെട്ടിട്ടുള്ളതാണ് ആയതിനാൽ, എതിർകക്ഷിയുടെ കുറ്റകൃത്യവും ലക രിയായ തടങ്കലിന്റെ ഷവും സെ വിധത്തിൽ പാലിക്കപ്പെട്ടിട്ടുള്ളതാണ്. ” 11. A reading of paragraph no.9 of Ext.P1 would clearly indicate that all what has been stated therein is that there is no lack of explanation for the delay and that hence ,the live link between the last prejudicial activity and the purpose of detention has not been snapped in this case. Hence, it is clear that no explanation, whatsoever, had been given by the detaining authority, for explaining the delay of 4 months and 23 days in passing the detention order, after the commission of the last crime. It is by now well settled, by various decisions of the Apex Court and various High Courts, as well as the this Court, including a decision of the Apex WP(Crl) No.835 of 2022 - : 9 :- Court in the case in Sushantha Kumar Banik Vs. State of Tripura and others, (2022 SCC Online 1333) that, if there is inordinate and unexplained delay in passing the detention order, then the same is liable for interdiction in judicial proceedings. Since no effective explanation has been given by the detaining authority in Ext.P1, urging other grounds, by way of pleadings like counter affidavit or by arguments before the Court, will not suffice unless the factual basis for the same is discernible from a reading of the impugned order. In the absence of such credible explanation, we are of the view that the delay of 4 months and 23 days, as between the last prejudicial activity and the impugned detention order, is inordinate and unexplained and therefore, liable for interdiction. Hence, on this short ground it is ordered, in the interest of justice, that the impugned Ext.P1 detention order dated 20.08.2022, as confirmed by the 3[rd] respondent State Government, as per GO(Rt) No.2877/2022/Home, dated 19.10.2022, will stand quashed and set aside. 12. Consequently, it is ordered that the respondents herein and the jail authorities concerned (Superintendent, Central Prison, Viyyur, Thrissur District), where the detenu is now detained, shall WP(Crl) No.835 of 2022 **==> picture [36 x 9] intentionally omitted <==** forthwith set the detenu involved in this case (Abdul Aslam, aged 25 years), at liberty and release him from detention, if his detention is not required in any other case. The Registry and the Secretary to the Office of the Advocate General will forward copies of this judgment to the respondents as well as to the Superintendent, Central Jail, Viyyur, Thrissur District for immediate information and compliance of the above directions in this judgment. With these observations and directions, the above WP(Crl) will stand disposed of. sd/- ## ALEXANDER THOMAS, JUDGE sd/C.S.SUDHA, JUDGE Nsd ## **`APPENDIX OF WP(CRL.) 835/2022`** ``` PETITIONER EXHIBITS Exhibit P1A TRUE COPY OF THE ORDER NO.DCKLM/4952/2022- M16 OF THE 1ST RESPONDENT DATED 20/08/2022. Exhibit P2A TRUE COPY OF THE REPRESENTATION BEFORE THE 3RD RESPONDENT DATED 27/08/2022. ```