Suja Rani v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934 WP(Crl.).No. 474 of 2012 (S) ------------------------------ PETITIONER: ------------ SUJA RANI AGED 40 YEARS AGED 40, W/O.RAMESH KUMAR RESIDING AT ATTARIKATHU THEKKEBHAGATHU KATTACKAL VEEDU TAGORE ROAD, ARMADA, THIRUVMALA P.O. THIRUVANANTHAPURAM. BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ SMT.V.SARITHA SRI.P.S.SANDEEP RESPONDENT: ----------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HOME SECRETARY GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001. 2. DISTRICT MAGISTRATE, THIRUVANANTHAPURAM-695001. 3. DEPUTY COMMISSIONER OF POLICE (L&O), THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695001. 4. SUPERINTENDENT OF CENTRAL PRISON, VIYYUR, THRISSUR DISTRICT, PIN-680010. BY STATE PUBLIC PROSECUTOR SRI. T. ASAF ALI. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21-01-2013, THE COURT ON 22-01-2013 THE SAME DAY DELIVERED THE FOLLOWING: ## **PIUS C. KURIAKOSE & BABU MATHEW P. JOSEPH, JJ.** -----------------------------------------------------------W.P. (Crl.) No. 474 of 2012 ------------------------------------------------------------Dated this the 22[nd] day of January, 2013 ## **JUDGMENT** ## **Babu Mathew P. Joseph, J.** This Writ Petition has been filed challenging Ext.P1 detention order dated 10.9.2012 passed against the detenu and for setting him at liberty. 2. The petitioner is the wife of the detenu. The detenu was placed under preventive detention with immediate effect at Central Prison, Thiruvananthapuram, by Ext.P1 detention order dated 10.9.2012 of the second respondent, the District Magistrate. The detention order has been passed by the second respondent exercising his powers under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short, KAA(P)A]. Pursuant to Ext.P1 order, the detenu was taken into custody on 12.9.2012 and admitted him to the Central Prison, [W.P.(Crl.) No.474/2012] 2 Thiruvananthapuram. Subsequently, he was transferred to the Central Prison, Viyyur and he is continuing under detention there. Ext.P1 detention order has been approved by the Government, first respondent, as per order dated 20.9.2012. The Advisory Board sent a report dated 6.11.2012 finding that there was sufficient cause to detain the detenu. Thereafter, the first respondent has issued order dated 15.11.2012 confirming Ext.P1 detention order and directing to continue the detention for six months from the date of detention. The petitioner challenges Ext.P1 detention order on various grounds in this Writ Petition. 3. Heard Shri.C.S. Manu, the learned counsel appearing for the petitioner, and Shri.T. Asaf Ali, the learned State Public Prosecutor appearing for the respondents. Detailed arguments have been advanced by both the sides before us. 4. The Deputy Superintendent of Police, third respondent, submitted a report dated 22.8.2012 before the second respondent requesting him to pass an order against the detenu under Section 3 of KAA(P)A. The second respondent, after considering that report, found the detenu to be a known goonda as defined under Section 2(o) of KAA(P)A. The second respondent, in Ext.P1 detention order, considered the following [W.P.(Crl.) No.474/2012] 3 five criminal cases in which the detenu is involved. They are Crime Nos. 341 of 2008, 299 of 2010, 621 of 2010, 683 of 2012 and 403 of 2012 of Poojappura Police Station. Since the details of these cases are not necessary for disposing of this Writ Petition, they are not stated here. The second respondent has not relied on Crime No.403 of 2012 for the purpose of finding the detenu to be a known goonda as the seizure of the river sand effected in that case was not in the presence of witnesses. 5. Even though various contentions have been raised challenging the detention order, the contention that there was inordinate and unexplained delay in passing the detention order by the second respondent alone has been pressed into service at the time of hearing. Learned counsel for the petitioner submitted that the last prejudicial activity alleged against the detenu is the offence allegedly committed by the detenu in Crime No.403 of 2012 of Poojappura Police Station. The occurrence in Crime No.403 of 2012 was on 26.4.2012. Therefore, the last prejudicial activity alleged against the detenu has taken place on 26.4.2012. But, Ext.P1 detention order has been passed by the second respondent only on 10.9.2012. This shows that there was a delay of 4½ months in passing the detention order after 4 [W.P.(Crl.) No.474/2012] the last alleged anti-social activity on 26.4.2012. The second respondent observed in Ext.P1 detention order that if the detenu was at large he would indulge in anti-social activities which would affect the ecological balance, life of the general public and the social order in that locality. So, in order to protect the members of the general public etc., from the anti-social activities of the detenu, the detention order has been passed. It is the contention raised by the learned counsel for the petitioner that Ext.P1 order is bad owing to inordinate and unexplained delay. That the cause of delay has not been explained at all in Ext.P1. The explanation for the delay offered in the counter affidavit filed by the second respondent is far from satisfactory. So, the delay occurred in this case remains not properly explained. Mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the detention order provided the delay is satisfactorily explained by the authorities concerned. 6. Dealing with the delay in passing the detention order, the Supreme Court held in **T.A. Abdul Rahman** v. **State of Kerala** (AIR 1990 SC 225) as follows: “........However, when there is undue and long [W.P.(Crl.) No.474/2012] 5 delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned, when called upon to answer and further the Court has to investigate whether the causal connection has been broken in the circumstances of each case.” Dealing with the unexplained delay, the Supreme Court in **P.N.Paturkar** v. **S. Ramamurthi** (AIR 1994 SC 656) held as follows: “14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order......” 7. The maximum period of detention under KAA(P)A shall not exceed six months from the date of detention as determined under Section 12. KAA(P)A is intended to effectively preventing and controlling anti-social activities in the State of Kerala. Therefore, the detaining authority is passing a detention order exercising his powers under Section 3 of KAA(P)A for the purpose of preventing a known goonda or known rowdy from committing [W.P.(Crl.) No.474/2012] 6 any anti-social activities. This is for protecting the members of the general public from such anti-social activities. The Legislature thought it proper to fix the maximum period of detention under KAA(P)A as six months. In the case on hand, the last alleged anti-social activity occurred on 26.4.2012. But, the second respondent has passed Ext.P1 detention order only on 10.9.2012. When the maximum period for which a person can be detained is determined to be six months, a delay of 4½ months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. Here, no satisfactory explanation has been given for the delay either in Ext.P1 detention order or in the counter affidavits filed by the respondents 1 and 2. Therefore, the inordinate and unexplained delay occurred in this case is fatal in nature and hence, it vitiates the detention order. Such a delay, definitely, cast doubt on the genuineness of the subjective satisfaction of the detaining authority. Such delayed order cannot be considered as one passed for protecting the members of the general public from the anti-social activities as claimed by the second respondent in Ext.P1. Therefore, Ext.P1 detention order is liable to be quashed and the detenu is entitled to be released forthwith. [W.P.(Crl.) No.474/2012] 7 In the result, we quash Ext.P1 order issued by the second respondent and approved and confirmed by the first respondent. The Superintendent, Central Prison, Viyyur, is directed to set the detenu at liberty forthwith, if he is not wanted in any other case. The Registry of this Court is directed to issue release order forthwith. This Writ Petition is allowed. **Sd/PIUS C. KURIAKOSE, JUDGE.** **Sd/BABU MATHEW P. JOSEPH, JUDGE.** krs. // True Copy // P.S. to Judge.