Softy Johnson v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN** ## **MONDAY, THE 17TH DAY OF JUNE 2013/27TH JYAISHTA 1935** **WP(Crl.).No. 83 of 2013 (S) ----------------------------** **PETITIONER(S): --------------------------** **SOFTY JOHNSON AGED 27 YEARS, W/O. JOHNSON, CHANNIYIL HOUSE WARD NO.2, AROOR PANCHAYATH, CHERTHALA ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.B.PRAMOD** **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA REPRESENTED BY ITS HOME SECRETARY, SECRETARIAT THIRUVANANTHAPURAM.** **2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, ERNAKULAM.** **3. THE DISTRICT POLICE CHIEF ALAPPUZHA.** **4. THE STATION HOUSE OFFICER AROOR POLICE STATION, CHERTHALA, ALAPPUZHA DISTRICT.** **BY SRI. K.I. ABDUL RASHEED - ADDL.DIRECTOR GENERAL OFPROSECUTION** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** APPENDIX ## **PETITIONER(S) EXHIBITS** EXHIBIT-P1- TRUE COPY OF THE ORDER OF DETENTION DATED 07/01/2013 PASSED BY THE 2ND RESPONDENT. EXHIBIT-P2- TRUE COPY OF THE FINAL REPORT DATED 30/11/2012 SUBMITTED BY THE 3RD RESPONDENT. ## **RESPONDENTS' EXHIBITS :** **NIL.** ## **TRUE COPY** **PA TO JUDGE.** _acd_ **ANTONY DOMINIC & P.D. RAJAN, JJ.** ------------------------------------------W.P.(Crl) No.83 of 2013 ---------------------------------------------Dated this the 17[th] day of June, 2013 ## **JUDGMENT** ## **ANTONY DOMINIC,J.** The petitioner challenges Ext.P1 order issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007, (hereinafter referred to as the 'Act') whereby her husband 'Johnson' was ordered to be detained under the said Act. 2. Briefly stated, facts disclosed are that Sri. Johnson was involved in nine criminal cases, out of which he has been acquitted in four cases. Remaining cases are S.C.No.546/2010 pending before the Additional Sessions Court, Cherthala in relation to an occurrence on 03.02.2007, C.C.No.113/2009 pending before the J.F.C.M. Court-II, Cherthala in relation to an occurrence on 17.09.2008, C.C.No.977/2009 pending before the J.F.C.M.Court, Cherthala in relation to an occurrence on 10.12.2008, C.C.No.2094/2012 pending before the J.F.C.M. Court, Cherthala in relation to an occurrence on 29.5.2012 and W.P.(Crl)No.83/13 2 C.C.No.2378/12 pending before the J.F.C.M-II, Cherthala in relation to an occurrence on 6.8.2012. 3. In view of the pendency of the aforesaid cases, the 3[rd] respondent submitted Ext.P2 report dated 30.11.2012 to the 2[nd] respondent, the detaining authority. In this report, for the reasons stated therein, the 3[rd] respondent requested that the petitioner's husband 'Johnson' be declared as a 'knownrowdy' and detained under Section 3 of the Act. Based on the report so made, the 2[nd] respondent passed Ext.P1 order dated 7.1.2013, whereby 'Johnson' was declared as a 'known rowdy' and was ordered to be detained as proposed in Ext.P2 report. On that basis, he was arrested on 19.1.2013 and is in detention since then. It is in this background, the petitioner, the wife of the detenu has filed this writ petition seeking to set aside Ext.P1 order and to setting the detenu at liberty. 4. We heard the learned counsel for the petitioner and also the learned Additional Director General of Prosecutions, who appeared for the respondents. 5. The first contention raised by the learned counsel for the petitioner is that M.C.No.36/2008 registered under Section 107 of Cr.P.C. was pending before the Sub Divisional 3 W.P.(Crl)No.83/13 Magistrate, Alappuzha and that the order passed in that proceedings was not placed before the detaining authority. 6. The second contention raised is that among five cases, which were taken note of, the occurrence in respect of third one was on 10.12.2008 and the fourth one was only on 29.5.2012. According to the learned counsel, it was during this interval that Section 107 proceedings were initiated and orders were passed. It is stated that the detaining authority has not examined as to whether the proceedings under the ordinary law of the land would have been sufficient to prevent the detenu from continuing his anti-social activities. Therefore, according to the learned counsel, the detention order passed, without such consideration, is illegal. 7. The third contention raised was that the last prejudicial activity allegedly committed by the detenu was on 6.8.2012 and that Ext.P1 order of detention was passed, after five months, on 7.1.2013. This inordinate and unexplained delay, according to the learned counsel for the petitioner, should invalidate the detention order. In this context, the learned counsel for the petitioner also relied on the principles laid down by a Division Bench of this Court in _**Jimesh Jose**_ v. W.P.(Crl)No.83/13 4 _**State of Kerala and others**_ [2013 (1) KHC 49], whereby, according to the learned counsel, a detention order passed after 4 ½ months was set aside by this Court on the ground of delay. 8. Insofar as the 1[st] contention about the omission on the part of the sponsoring authority in placing the order passed in M.C.No.36/2008 before the detaining authority is concerned, files produced by the learned Additional Director General of Prosecution shows that the proceedings were dropped on 7.7.2010, on successful completion of the bond period for keeping peace for one year, which was executed by the detenu. Admittedly, after 7.7.2010, at least two offences were allegedly committed by the detenu and the proceedings under the Act were initiated against him only on 13.11.2012. The files show that the communication issued by the Sub Divisional Magistrate reporting about the closure of Section 107 proceedings vide his letter dated 6.12.2012 was produced before the detaining authority. In any case, even if this document was not produced before the detaining authority, having regard to the fact that the bond period had expired as early as on 7.7.,2010, we do not think that this document was 5 W.P.(Crl)No.83/13 a crucial one in respect of proceedings, which were initiated only on 13.11.2012. Therefore, we are not impressed by this argument raised by the learned counsel for the petitioner. 9. Insofar as the 2[nd] contention regarding nonconsideration by the detaining authority as to whether 107 proceedings would have been sufficient is concerned, first of all, Ext.P1 order itself shows that the detaining authority was fully aware of the 107 proceedings, which were initiated against the detenu. Admittedly, 107 proceedings were discharged on 7.7.2010. In spite of those proceedings, the fact remains that the detenu got involved in at least two offences, which were allegedly committed on 29.5.2012 and 6.8.2012. This itself would show that 107 proceedings did not in any manner refine him and he continued his anti-social activities. In such circumstances, we are unable to accept the second contention raised by the learned counsel for the petitioner. 10. The third contention raised is regarding the delay in issuing Ext.P1 order. It is true that in several cases, including the one relied on by the learned counsel for the petitioner, it has been held that long and unexplained delay would 6 W.P.(Crl)No.83/13 invalidate an order of preventive detention. However, insofar as this case is concerned, the last prejudicial activity was on 6.8.2012 and sponsoring authority made its report on 30.11.2012. In the affidavit filed by the sponsoring authority, it has been stated that the Circle Inspector of Police forwarded proposals to the 3[rd] respondent on 30.10.2012. We fully agree with the learned Additional Director General of Prosecutions that the Circle Inspector could have made his report only after collecting the materials in relation to the offences alleged against the detenu and only on verification of the facts reported. This process certainly takes time and an explanation that the collection of details and its verification took certain amount of time is certainly an acceptable one. On receipt of the report of the Circle Inspector dated 30.10.2012, the 2[nd] respondent made Ext.P2 report on 30.11.2012. It was thereafter that Ext.P1 detention order was passed on 7.1.2013. Both Exts.P2 and P1 made by the 3[rd] respondent and the 2[nd] respondent respectively have to be after verification and with due application of mind, which process again takes reasonable amount of time. 11. We are inclined to think that, in the facts of this W.P.(Crl)No.83/13 7 case, the delay has been satisfactorily explained. Therefore, following the principles laid down by a Division Bench of this Court in W.P.(Crl) No.73/2013, we hold that since the delay is satisfactorily explained, the 3[rd] contention raised by the petitioner, also cannot be accepted. We are not inclined to accept the three contentions raised before us and resultantly, the writ petition fails and is dismissed. **ANTONY DOMINIC, JUDGE** ## **P.D. RAJAN, JUDGE.** acd W.P.(Crl)No.83/13 8 W.P.(Crl)No.83/13 9