Shanid K T v. State of Kerala & Ors.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **&** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945** **WP(CRL.) NO. 124 OF 2023** ## **PETITIONER:** **SHANID K T AGED 32 YEARS S/O ABDULLA K T, K T HOUSE, MUTHANGALI PARAMB ODUMBRA P O, OLAVANA, PIN - 673019** **BY ADVS.RENJITH B.MARAR LAKSHMI.N.KAIMAL** ## **RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY HOME SECRETARY, SECRETARIAT TRIVANDRUM, PIN - 695001** - **2 THE ADVISORY BOARD KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION)ACT VIVEKANANDA NAGAR,ELAMAKKARA KOCHI,KERALA, PIN - 682026** - **3 DEPUTY INSPECTOR GENERAL & COMMISSIONER OF POLICE PUTHIYARA,KOZHIKODE, KERALA, PIN - 673004** - **4 DEPUTY POLICE COMMISSIONER LAW AND ORDER,KOZHIKODE CITY, PIN - 673005** - **5 STATION HOUSE OFFICER, NALLALAM POLICE STATION, KOZHIKODE, PIN - 673027 BY ADV.K.A.ANAS, PUBLIC PROSECUTOR** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR FINAL HEARING ON 26.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(Crl.) No.124 of 2023** 2 ## **P.B.SURESH KUMAR & C.S.SUDHA, JJ.** **-------------------------------------------------W.P.(Crl.) No.124 of 2023 ------------------------------------------Dated this the 26[th] day of May, 2023** ## **J U D G M E N T** ## **C.S.Sudha, J.** Ext.P1 show cause notice and Ext.P2 externment order issued under Section 15(1) and 15(1)(a) respectively of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) are under challenge in the present writ petition. By way of Ext.P2 externment order issued by the third respondent, the petitioner has been restrained from entering the territorial limits of Kozhikode City police limits for a period of one year. Ext.P2 order has been modified as per Ext.P4 order of the Advisory Board under Section 15(2) of KAAPA by which the period of externment has been reduced from one year to eight months. 2. Heard Sri.Renjith B.Marar, the learned counsel for the writ petitioner and Sri.K.A.Anas, the learned Public Prosecutor for the respondents. 3. The challenge mounted against Exts.P1 and P2 are two-fold, namely, (i) non-application of mind by the third respondent, namely, the 3 ## **W.P.(Crl.) No.124 of 2023** detaining authority in passing the order and (ii) the long delay or gap between the last prejudicial activity and Ext.P2 externment order. In support of the grounds of challenge, reference is made to the dictums in **Sreeja Jayaprakash v. District Collector/District Magistrate** , **2019 KHC 2814; Shyam Kumar @ Unni v. State of Kerala, 2020 KHC 599 and Jasid A.S. v. State of Kerala, 2022(7) KHC 453** . 4. _Per contra,_ it is submitted on behalf of the respondents that there is no delay as alleged by the petitioner and that there has in fact been a proper application of mind relating to all the relevant facts by the detaining authority and so Ext.P2 order is not vitiated in any manner. Reference is made to the dictum in **Stalin C.V. v. State of Kerala, 2011(1) KHC 852** in support of the argument. 5. We shall first deal with the argument of non-application of mind by the detaining authority. In paragraph 12 of Ext.P2 externment order, it is stated that this Court has granted bail to the petitioner in Crl.M.C.No.1117/2002 in Crime No.347/2022, Panniankara Police Station alleging the commission of offences punishable under Sections 341, 323, 324, 307 read with Section 34 IPC. According to the petitioner, there is no such order. The petitioner has been granted bail by this Court in the aforesaid crime by order dated 29/07/2022 in B.A.No.5707/2022. The **W.P.(Crl.) No.124 of 2023** 4 aforesaid wrong statement in Ext.P2 itself would show that the detaining authority had never even seen the bail order of this Court and as he has not seen the bail order, it is apparent that the sufficiency of the bail conditions have also not been considered. Hence there is clear non-application of mind by the detaining authority relating to relevant facts. Reference is made to the dictum in **Sreeja Jayaprakash** ( _Supra_ ) in support of this argument, wherein it has been held that failure on the part of the detaining authority to consider the sufficiency of the bail conditions would definitely question the sufficiency of the subjective satisfaction that the detaining authority had while passing the externment order and that the said failure on the part of the detaining authority would be sufficient to set aside the order of detention. The learned Public Prosecutor on the other hand contends that the mistake in referring to the number of the case in the bail order is only a typographical error and that the same would not in any way vitiate Ext.P2 order. 6. In Ext.P1 show cause notice, it is stated that the petitioner has been granted bail by this Court by order dated 29/07/2022 in Crime Nos.347/2022, Panniankara Police Station, which is the last prejudicial activity alleged to have been committed by the petitioner before the passing of Ext.P2 order. There is no mistake in the notice. However, in Ext.P2, the **W.P.(Crl.) No.124 of 2023** 5 number of the case referred to, that is, Crl.M.C.No.1117/2022, is apparently wrong. Admittedly the petitioner has been granted bail by this Court in Crime Nos.347/2022, Panniankara Police Station as per order dated 29/07/2022 in B.A.No.5707/2022. A reading of Ext.P2 order would show that the detaining authority was quite conscious or aware of the bail order of this Court. The only mistake committed in the order is in referring to the number of the case. The mistake in referring to the number of the case cannot by itself lead to the conclusion that there has been non-application of mind by the detaining authority. This is especially so when the detaining authority has in fact considered the efficacy or sufficiency of the conditions imposed by the courts while granting bail in crimes, namely, Crime No.434/2021, Nallalam Police Station and Crime No.347/2022, Panniankara Police Station and concluded that they are insufficient. The court while granting bail in Crime No.434/2021, Nallalam Police Station had imposed a condition that the petitioner shall not commit any offence(s) while on bail. However, he violated the said condition by the commission of the offences in Crime No.347/2022, Panniankara Police Station. Therefore, the detaining authority in Ext.P2 order concluded that the bail conditions imposed in the different crimes were not sufficient to deter the petitioner from committing further crimes and hence to prevent the **W.P.(Crl.) No.124 of 2023** 6 petitioner from indulging in further prejudicial activities, an order of externment is required to be issued. In such circumstances, the argument that there has been non-application of mind by the detaining authority on relevant facts, will only have to be rejected. 7. Now coming to the argument relating to delay. According to the learned counsel for the petitioner, the last prejudicial activity took place on 29/05/2022. The petitioner was granted bail by this Court on 29/07/2022. Pursuant to a preliminary report being submitted by the fourth respondent on 02/11/2022 to the third respondent, namely, the authorized officer issued Ext.P1 show cause notice on 04/11/2022 which finally ended in Ext.P2 externment order dated 15/11/2022. There has been a considerable amount of delay or gap between the last prejudicial activity and Ext.P2 order. Referring to the dictum in **Jasid A.S** . ( _Supra_ ) it was submitted that due to the inordinate delay or gap between 29/07/2022, the date on which the petitioner was released on bail, and Ext. P2 order dated 15/11/2022, the live link between the last prejudicial activity and the purpose of detention had snapped and hence Ext. P2 order is vitiated. It was also pointed out relying on the dictum in **Shyam Kumar @ Unni** ( _Supra_ ) that the fact that the petitioner was not involved in any crime during the aforesaid period could have been sufficient ground for the detaining **W.P.(Crl.) No.124 of 2023** 7 authority to conclude that the petitioner is not likely to indulge in further crimes in the immediate future. However, the officer concerned passed Ext.P2 order without considering the long period during which the petitioner had not indulged in any crime. For the said reason, also it can be seen that the authority concerned had not applied its mind properly in arriving at the conclusion that the petitioner is likely to indulge in further crimes and therefore, an order under S.15(1) of KAAPA must be passed against him. 7.1. On the other hand, it was submitted by the learned Public Prosecutor that there has been no unreasonable delay and that only reasonable time has been taken to complete the formalities before the issuance of Ext.P2 order. 8. The last prejudicial activity, i.e., Crime No.347/2022, Panniankara Police Station was committed by the petitioner on 29/05/2022. In Ext.P2 order as well as in the counter affidavits filed by the third and the fourth respondents, it is stated that the aforesaid crime was reported to the police on 30/05/2022. The petitioner, after the commission of the crime, had absconded. He was apprehended/arrested on 08/06/2022 and thereafter bail was granted by this Court on 29/07/2022. After collecting all the necessary materials relating to the various crimes committed by the **W.P.(Crl.) No.124 of 2023** 8 petitioner from the police stations and authorities concerned, a preliminary report was submitted through proper channel. The Deputy Commissioner of Police, Kozhikode City, then submitted a report on 02/11/2022 to the third respondent recommending action under Section 15(1) KAAPA, pursuant to which Ext.P1 show cause notice dated 04/11/2022 was issued by the third respondent which was served on the petitioner on the very same day. Thereafter on 15/11/2022, Ext.P2 order was passed. Therefore, the argument is that there is no inordinate delay as alleged by the petitioner. 9. Four crimes and the proceedings under Section 107 Cr.P.C. initiated against the petitioner have been taken into consideration for passing Ext.P2 order. The process for initiating the proceedings under Section 15 was set in motion on 19/09/2022 by the SHO, Nallam police Station, namely, the fifth respondent, who is stated to have submitted a report relating to the same to the fourth respondent, the sponsoring authority, who in turn on 02/11/2022 submitted a report to the third respondent, recommending action under section 15(1). Pursuant to the same, Ext.P1 notice was issued on 04/11/2022, which finally ended in Ext.P2 order dated 15/11/2022. As pointed out by the learned prosecutor, the fifth respondent could submit his report to the fourth respondent only after collecting the necessary materials relating to the various crimes from **W.P.(Crl.) No.124 of 2023** 9 the authorities concerned and the fourth respondent in turn could submit his report only after making necessary enquiries and on being convinced of the need to make a recommendation under Section 15(1). A reasonable time was certainly required to complete the aforesaid process, which appears to be the reason for the time gap between the release of the accused and Ext.P2 order. Therefore, the aforesaid delay cannot be said to be fatal in this case. 10. Further, as held in **Stalin C.V.** _(Supra)_ , the nature of the proceedings under S.3 and S.15 are inherently different. The Authority in S.15 can act in a matter where the known goonda or known rowdy is indulging or about to indulge or is likely to indulge in anti - social activities and it is to prevent the person concerned from so acting in any place within his jurisdiction that an order could be passed. In the case of S.3(1) of the Act, there is an indication that the legislature intended a sense of immediacy and, therefore, a proximate nexus between the act or acts and the order of detention is inevitable. Section 15 apart from allowing the officer to delve into the past, permits him to hypothesize about what the known-goonda or known-rowdy, is likely to do in the immediate future, having regard to the use of the words 'about to indulge'. It also permits the officer to glean out the likelihood of such a person indulging in anti-social **W.P.(Crl.) No.124 of 2023** 10 activities. In comparison to the order of detention, an order under S.15, is lighter in its impact on the personal liberty of the person concerned. That would not however mean that if the act(s) which are complained of have completely lost their relevance by the passage of time, giving rise to a total absence of any nexus, still an order of restriction could be passed under S.15. The case on hand is not a case of the said nature. The third respondent in the circumstances of this case was fully justified in passing Ext.P2 order as the conditions imposed while granting bail to the petitioner were found to be insufficient and ineffective in preventing the petitioner from committing further prejudicial activities. Hence the challenge to Ext.P1 show cause notice and Ext.P2 externment order will have to fail. In the result, the writ petition is dismissed. Interlocutory applications, if any pending, shall stand closed. **P.B.SURESH KUMAR** ami/ **W.P.(Crl.) No.124 of 2023** 11 ## **APPENDIX OF WP(CRL.) 124/2023** ## **PETITIONER EXHIBITS** |**Exhibit P1**|**A TRUE COPY OF THE SHOW CAUSE NOTICE BY**| |---|---| ||**THE 3RDRESPONDENT DATED 04.11.2022**| |**Exhibit P2**|**A TRUE COPY OF THE ORDER OF DISTRICT**| ||**POLICE CHIEF ,KOZHIKODE DATED 15.11.2022**| |**Exhibit P3**|**A TRUE COPY OF THE APPEAL PREFERRED BY**| ||**THE PETITIONER U/S 15(2) OF THE ACT**| |**Exhibit P4**|**A TRUE COPY OF THE ORDER DATED**| ||**13.12.2022 PASSED BY THE ADVISORY BOARD**| ||**KAAPA**|