Suni v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935** ## **WP(Crl.).No. 73 of 2013 (S)** **----------------------------** ## **PETITIONER(S): --------------------------** **SUNI, AGED 30 YEARS, W/O.SHIBUKUMAR @ RADHAKRISHNAN, RESIDING PALLIPPADY HOUSE, PADINJATTUM MURI, PANDANADU VILLAGE, CHENGANNUR TALUK, ALAPPUZHA.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT(S):** **----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM , PIN 695 001.** **2. DISTRICT MAGISTRATE, ALAPPUZHA, PIN 688 001.** **3. DISTRICT POLICE CHIEF, ALAPPUZHA, PIN 688 001.** **4. SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM DISTRICT, PIN 695 001.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 20-05-2013, THE COURT ON 24-05-2013 DELIVERED THE FOLLOWING: Kss** ## **WP(CRL.)NO.73/2013 S** ## **APPENDIX** ## **PETITIONER'S EXHIBIT:** **P1: COPY OF THE ORDER OF DETENTION BEARING NO.SC-6/35039/2012 DTD. 27/07/2012 ISSUED BY THE 2ND RESPONDENT DISTRICT MAGISTRATE.** **RESPONDENT'S EXHIBITS: N I L** **/TRUE COPY/** **P.S.TO JUDGE** **Kss** ## **K.M. JOSEPH & K. RAMAKRISHNAN, JJ.** - - - - - - - - - - - - - - - - - - - - - - - - - W.P (Crl.) No.73 of 2013 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of May, 2013 ## J U D G M E N T ## K.Ramakrishnan, J This is an application filed by the wife of the detenue Shibukumar @ Radhakrishnan for release of the detenue under Article 226 of the Constitution of India. 2. The case of the petitioner in the petition was that the petitioner’s husband Shibukumar has been detained in Central Prison, Thiruvananthapuram, as per Ext.P1 detention order No.SC- 6/35039/2012 dated 27.07.2012 issued by the 2nd respondent under Section 3(1) of the Kerala Anti Social Activities (Prevention) Act, 2007 (herein after called 'the Act'). 2nd respondent had classified the detenue as known rowdy, within the meaning of Section 2(p) (iii) read with Section 2(t) of the said Act. Following four criminal cases have been considered by the 2nd respondent for classifying the detenue as known rowdy. W.P (Crl.) No.73 of 2013 2 |No.|Crime<br>No|Name of the<br>police station|Offences|Date of<br>occurrence|Status of the<br>case| |---|---|---|---|---|---| |1|131 of<br>2006|Mavelikkara<br>Police Station|Secs. 120(b),<br>114, 143, 147,<br>148, 302 read<br>with 149 I.P.C|11/03/06|Copy of the<br>Fir and<br>Charge sheet<br>filed before<br>the JFMC,<br>Mavelikkara| |2|921 of<br>2011|Chengannur<br>Police Station|Secs. 143, 147,<br>148, 307, 326,<br>324, 323 294<br>(b), 506(ii)<br>read with 149<br>of IPC|03/10/11|Copy of FIR<br>and Charge<br>Sheet filed<br>before the<br>CJM Court,<br>Chengannur| |3|938 of<br>2011|Chengannur<br>Police Station|Secs. 143, 147,<br>148, 447, 436,<br>506(ii) read<br>with 149 of<br>IPC|07/10/11|Copy of FIR<br>and Charge<br>Sheet filed<br>before the<br>CJM Court,<br>Chengannur| |4|133 of<br>2012|Pulikkeezhu<br>Police Station|Secs. 326, 307,<br>120(b) read<br>with 34 of IPC|17/03/2012|Investigation<br>under<br>progress| 3. Pursuant to Ext.P1 order, the detenue was arrested on 07.12.2012 by the Sub Inspector of Police, Chengannur Police Station and he has been detained in Central Prison, Thiruvananthapuram. Ext.P1 is contrary to law. It has been vitiated by non-application of mind. It was delayed by the detaining authority as well as the sponsoring authority. There is no nexus between the alleged prejudicial activity of the order of detention, and the said fact has not been considered by the W.P (Crl.) No.73 of 2013 3 detaining authority. The ingredients to classify the detenue as known rowdy as defined under Section 2(p) (iii) of the Act has not been established. The delay from the last date of incident and initiating proceedings against the detenue, and the final order passed has not been explained as the delay has snapped the link between the last incident, and the detention order. So, earlier the petitioner prayed for directing to issue a writ of habeas corpus or any other appropriate writ or order or direction, directing the respondent to produce the detenue before the Hon'ble Court and set him at liberty. Thereafter, the petitioner filed I.A No.5492/2013 for amending the writ petition incorporating prayer 1(a) namely, issue a writ of certiorari or any other appropriate writ, order or direction calling for records leading to Ext.P1 and to quash Ext.P1 and that was allowed. 4. Respondents 1 to 3 filed counter statement, denying the allegations and also giving reasons for initiateing proceedings against the husband of the peitioner, and also justifying the order of detention passed by the 2[nd] respondent under Section 3(1) of the Act, classifying the husband of the petitioner as known rowdy under the Act. The calender events with regard to the preventive detention of the detenue has been W.P (Crl.) No.73 of 2013 4 detailed as follows, in the counter affidavit filed by the first respondent. |a)|Date of order of detention|:|27.07.2012| |---|---|---|---| |b)|Execution of the order of detention|:|07.12.2012| |c)|Submission of proposal to Government|:|11.12.2012| |d)|Date of order of approval by Government|:|15.12.2012| |e)|Date of reference by the Government||| ||to the Advisory Board|:|22.12.2012| |f)|Date of report of the Advosory Board|:|23.01.2013| |g)|Date of confirmation of the order||| ||of detention|:|04.02.2013| |h)|Date of commission of last offence||| ||(Last prejudicial acitivity)|:|17.03.2012| |i)|Period between the last prejudicial activity|:|4 months| ||and the date of order of the detention|:|10days| ||(17.03.2012 to 27.07.2012)||| |j)|Period between the date of the order|:|4 months| ||of detention and its execution.||11 days| ||(27.07.2012 to 07.12.2012)||| All the four cases relied on and considered by the detaining authority were done by the husband of the petitioner, along with other known criminals of one Liju Oommen and Vetta Mujeeb @ Mujeeb Rehman and their gang, and he was even directed to W.P (Crl.) No.73 of 2013 5 execute a bond under Section 107 of Criminal Procedure Code in the year 2011, and it is thereafter, he had committed the last incident in the company of Vetta Mujeeb @ Mujeeb Rahman a known goonda. All these cases were initiated on the basis of statement given by the injured or affected persons. There was some delay in initiating proceedings as that has happened on account of collection of details by the Circle Inspector of Police, about the documents regarding the involvement of the husband of the petitioner from various police stations including in Pathanamthitta District, and that was forwarded to the Deputy Superintendent of Police who after conducting some enquiries and after satisfaction that detention order has to be passed against the petitioner’s husband, forwarded the same to the Superintendent of Police who is the sponsoring authority who thereafter submitted report dated 05.07.2012 before the 2[nd] respondent requesting to initiate proceedings against the petitioner and pass appropriate detention order against the husband of the petitioner, and after consideration of all the documents, and materials produced before him, the 2[nd] respondent has convinced that he is a known rowdy, as defined under the Act and he has to be detained under this Act, so as to W.P (Crl.) No.73 of 2013 6 prevent public tranquillity, and keep public peace. Accordingly, Ext.P1 order was passed, which was later approved by the Government, and confirmed later after getting the report from the advisory board. There is no illegality committed and the order passed was perfectly legal, and they prayed for dismissal of the application. 5. Thereafter, the petitioner filed reply affidavit stating that the delay has not been explained and the reasons stated are not sufficient to explain the delay in passing the detention order. He has also filed another reply affidavit, stating that there is no period of detention mentioned in the detention order, and the detenue was not informed about the confirmation order and as such, he was not aware of the period of detention ordered against him. On that ground, also Ext.P1 is liable to be quashed. Thereafter, further counter affidavit was filed by the respondents, wherein, they are explained the delay stating that the last crime namely, Crime No.133/2012 was registered by Pulikkeezhu Police Station, against the detenue and the incident reported happened on 17.03.2012. He had involved in 4 major crimes registered at Chengannoor, Mavelikkara and Pulikkeezhu Police Stations, and so the crime particulars of Crime W.P (Crl.) No.73 of 2013 7 No.131/2006 of Mavelikkara Police Station Crime No.921/2011 and 938/2011 of Chengannur police station and Crime No.133/2012 of Pulikkeezhu Police Station, have to be collected and Sub Inspector of Police Chengannur has collected all these documents and sent the proposal to initiate action against the petitioner’s husband under the Act. The same were sent to the Circle Inspector of Police Chengannur who in turn sent it to Deputy Superintendent of Police, Chengannur on 31.05.2012 and the Deputy Superintendent of Police after examining the proposal, forwarded a report to the office of the Deputy Superintendent of Police vide letter dated 08.06.2012, and after making enquiry regarding the proposal, the sponsoring authority had sent a report on 05.07.2012 to the District Magistrate, for initiating action against the husband of the petitioner, and the detaining authority has passed Ext.P1 order on 27.07.2012, and the order was executed on 07.12.2012, till then the detenue was absconding. So, there is no inordinate delay and the snap between the incident and the detention order has not been broken. 6. Heard both sides and perused the records, namely, the file maintained by the office of the sponsoring W.P (Crl.) No.73 of 2013 8 authority in this regard. 7. The point that arises for consideration is, “whether Ext.P1 detention order is liable to be quashed for any of the reasons stated in the petition”. 8. The learned counsel for the petitioner Sri. Manu argued that the last incident happened on 17.03.2012, and the proposal for initiating action under the Act itself was sent by the sponsoring authority only on 05.07.2012, after lapse of nearly four months and ten days, and the order was passed on 27.07.2012 and the last prejudicial activity complained against the detenue was on 17.03.2012, and this has not been explained either by the detaining authority or by the sponsoring authority, and the reasons stated by them in the subsequent additional affidavit filed by them is not believable and cannot be accepted, as no such long time is required for getting the copy of the documents and if required it can be obtained within a day, and as such the delay is fatal and on that ground the order passed by the detaining authority is liable to be quashed. 9. On the other hand, learned Additional Director General of Prosecution Sri. Abdul Rasheed submitted that there is no inordinate or un-explained delay in initiating the W.P (Crl.) No.73 of 2013 9 proceedings and in fact the delay has been properly explained and there is no inordinate delay in initiating the proceedings, and the detenue had involved in four crimes along with other known criminals who had undergone preventive detention earlier under the Act. He had committed the last crime after he had executed a bond under Section 107 of Crl. Procedure Code, and that will go to show that he is a threat to the society and he is creating fear among the people and as such inorder to protect public safety and peace, his detention is required under the Act. According to him, the order passed by the detaining authority is perfectly legal. 10. Though the counsel for the petitioner had a case in the subsequent reply affidavit filed that the confirmation order passed by the Government has not been communicated to him, and he was not aware of the period of detention, that contention was later not pressed by him when the Additional Director General of Prosecution produced the served copy of the confirmation order dated 04.02.2013 to the detenue on 18.02.2013, through the jail authorities. So that contention does not survive now. 11. The only other contention raised by the counsel W.P (Crl.) No.73 of 2013 10 for the petitioner was that there was inordinate delay. The delay of four months and ten days between the last prejudicial Act, and passing of the detention order has not been explained, and as such, the link between the prejudicial Act with detention order has been snapped, and on that ground, the order is liable to be set aside. Further the delay has not been properly explained and the time taken to collect documents cannot be believed and it can be obtained quickly as no such long time is required. He had relied on the unreported decision of this court in W.P. (Crl.) No.474/2000 (S) dated 21.01.2013, on this aspect, wherein it has been held that the un-explained delay in the initiating proceedings and passing the order cannot be considered as one passed for protecting the members of the general public from anti-social activities, and on that ground quashed the detention order passed. The learned Judge relied on the decision reported in AIR 1990 SC 225 (T.A. Abdul Rahman v. State of Kerala and others) and AIR 1994 SC 656 (Pradeep Nilkanth Paturkar v. S. Ramamurthi and others) for this purpose. In the earlier decision, it has been observed as follows:- “........However when there is undue and W.P (Crl.) No.73 of 2013 11 long delay between the prejudicial activities and the passing of the 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 casual connection has been broken in the circumstances of each case.” In the subsequent decision, it has been observed that: “ 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........” 12. The learned Addl. Director General of Prosecution submitted the decision of the Hon’ble Supreme Court reported in **(1988 KHC 985) Rajendrakumar Natvarlal Shah v. State of Gujarat and others** , wherein it has been observed that: “...... Even though there was no explanation for the delay between it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were Stale and illusory or that there was no W.P (Crl.) No.73 of 2013 12 rational connection between the grounds and the impugned order of detention, the order of detention is not vitiated”. It is the subjective satisfaction of the District Magistrate in respect of the prejudicial activities alleged against the detenue, and the reason for detaining him under the Act to protect public safety, that has to be considered. Even in the decisions relied on by the counsel for the petitioner, it has not been specifically stated that if there is delay, the order has to be quashed. What is stated is that, if there is no explanation given by the sponsoring authority and the detaining authority, when called for to explain the delay, then court has to consider that as a ground to quash the order as the nexus between the last prejudicial act and the reasons stated in the detention order for detaining the detenue has been snapped. 13. In this case, it is seen from the documents produced that the husband of the petitioner was accused in Crime No.131/2006 of Mavelikkara Police Station, alleging offences under Section 120(b), 114, 147, 148, 302 read with Section 149 of Indian Penal Code, and Crime No.921/2011 of Chengannoor Police Station alleging commission of offences W.P (Crl.) No.73 of 2013 13 under Sections 143, 147, 148 , 307, 326, 324, 323, 294(b), 506 (ii) read with 149 of Indian Penal Code, and Crime No.938/2011 of Chengannoor Police Station, alleging commission of offence under Sections 143, 147, 148, 447, 436, 506(ii) read with 149 of Indian Penal Code, and Crime No. 133/2012 of Pulikkeezhu police station alleging commission of the offence under Sections 326, 307, 120(b) read with Section 34 of Indian Penal Code. The last prejudicial incident in respect of Crime No.133/2012 had allegedly occurred on 17.03.2012. It is seen from the First Information Report in that case, that the case was registered against identifiable three persons on 17.03.2012, on the basis of the statement given by the defacto-complainant. It is only as per report dated 09.04.2012, the investigating officer in that case had submitted report showing the names of three persons including the present petitioner as the persons involved in that crime, requesting to array them as accused. It is thereafter that the Sub Inspector of Police collected all the details of the detenue and submitted the same to the Circle Inspector of Police, who forwarded the same to the Deputy Superintendent of Police, along with the report for proposal to initiate action against the detenue under Section 3(1) of the Act. Thereafter, W.P (Crl.) No.73 of 2013 14 the Deputy Superintendent of Police had conducted some enquiry on this and satisfied with the reasons stated for the proposal and he, along with his proposal sent the same to the Superintendent of Police and the Superintendent of Police after considering all those aspects, and satisfying himself that the reasons stated in the proposal for detention are genuine and also satisfied that proceedings under the Act has to be initiated against the petitioner, forwarded report dated 05.07.2012 along with the necessary documents collected by him for this purpose to the District Magistrate, who had passed Ext.P1 order after satisfying himself that the activities alleged against the petitioner’s husband will be sufficient to classify the detenue as known rowdy under Section 2(p)(iii) of the Act, and also satisfied from conduct of the detenue involving in the last prejudicial activity, after he executed a bond under Section 107 of Criminal Procedure Code for good behaviour, and also his acquaintance with other criminals of whom, some of them were detained under this Act earlier, and considering the nature of criminal activities allegedly committed by the detenue satisfied that his presence in the society is likely to affect public safety, and thereafter, passed Ext.P1 order. So it cannot be said under the W.P (Crl.) No.73 of 2013 15 circumstances, that the delay is fatal in this case, and the delay has not been explained by the detaining authority. We are fully satisfied with the reasons stated for the delay in initiating proceedings against the detenue, and it cannot be said to be fatal and sufficient to vitiate Ext.P1 order passed by the detaining authority. So, on that ground the petitioner is not entitled to get an order quashing Ext.P1. The order passed by the detaining authority is perfectly legal and just and does not call for any interference under the circumstances of the case. So the petition lacks merits, and the same is liable to be rejected and the petitioner is not entitled to get any of the reliefs claimed in the petition. In the result, the petition is dismissed. Sd/- S. SIRI JAGAN, (Judge) Sd/- K.RAMAKRISHNAN, (Judge) // True Copy/ P.A. To Judge ss