Thanagal Kunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 21ST DAY OF JANUARY 2021 / 1ST MAGHA, 1942** **WP(Crl.).No.253 OF 2020** ## **PETITIONER:** **THANAGAL KUNJU, AGED 65 YEARS** **S/O KUNJU MOIDEEN KUNJU, THARAYIL THEKKATHIL, VARAVA, PERUMANTHAZHA MURIYIL, KARUNAGAPPAALY VILLAGE, KOLLAM TALUK, KOLLAM DISTRICT** **BY ADVS. SRI.C.RAJENDRAN SHRI.K.VIJAYAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME), GOVERNMENT OF KERALA,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DISTRICT MAGISTRATE, CIVIL STATION, KOLLAM-691 001.** - **3 SUPERINTENDENT OF POLICE, (RURAL), SUPERINTENDENT OFFICE, KOLLAM-691 001.** - **4 STATION HOUSE OFFICER,OCHIRA POLICE STATION, OCHIRA,KOLLAM DISTRICT-690 526.** - **5 THE SUPERINTENDENT,CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM-695 012.** - **6 THE SUPERINTENDENT,CENTRAL PRISON, THRISSUR-680 010.** **R1-6 BY ADDL.DIRECTOR GENERAL OF PROSECUTION R1-6 BY GOVERNMENT PLEADER** ## **OTHER PRESENT:** **GOVERNMENT PLEADER SRI.K.A.ANAS ADDL.DGP SRI.SURESH BABU THOMAS WITH GOVERNMENT PLEADER SRI.K.A.ANAS ADDL.DGP SRI.SURESH BABU THOMAS WITH GOVERNMENT PLEADER SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18-01-2021, THE COURT ON 21-01-2021 DELIVERED THE FOLLOWING:** W.P.(Crl.) No.253 of 2020 2 **K. Vinod Chandran & M.R Anitha, JJ. ------------------------------------WP(Crl.) No.253 of 2020 -----------------------------------Dated, this the 21[st] day of January, 2021** ## **K. Vinod Chandran, J.** **An aggrieved father is before us raising contentions against the preventive detention of his son. The detenue was ordered to be detained under the provisions of Kerala Anti-Social Activities (Prevention) Act, 2007 (for brevity “KAAPA”) by Ext.P1 order dated 17.12.2019. The actual detention was made on 11.08.2020 after getting approval from the jurisdictional Court, which had remanded the detenue to judicial custody in Crime No.1243 of 2019 registered by FIR dated 04.12.2019.** **2. We heard Sri.Rajendran for the petitioner and Sri.Anas, learned Government Pleader on behalf of the State. Sri.Rajendran raised the following grounds in support of the** W.P.(Crl.) No.253 of 2020 3 **prayer to release the detenue from preventive detention. It is argued that under Section 10 of the KAAPA, though there is a bar insofar as appearance of legal practitioners before the Advisory Board, the detenue has a valuable right to be heard in person. He was never informed of that right nor was he given such right to appear in person and put forth his case. It is further argued that the detention as per Ext.P1 order was after almost 9 months, in which period the detenue** **had not indulged in any crime. The detenue was also in station and the detaining authorities did not think it fit to make his arrest for 9 months, especially when the preventive detention ordered was only for 6 months. There is no live link available to detain him with such delay. Though the arrest is said to have been recorded on 11.08.2020, it is the submission of the detenue that he was actually arrested on 08.08.2020 and produced before a Hospital, where he was detained** W.P.(Crl.) No.253 of 2020 4 **till he tested negative for Covid 19. He was again kept in quarantine till 16.09.2020, on which date alone he was produced before the Jail Authorities.** **3. The approval of detention was made on 24.08.2020 beyond the period prescribed of 12 days from the date of detention, which was actually 08.08.2020. The continued detention in a Hospital and later, on quarantine prejudiced the detenue in making an effective representation. Further, it is contended that the father of the petitioner, after taking legal advice, had sent a draft copy of the representation to be submitted before the Government and the Advisory Board, produced at Exts.P15 & P16. The same was sent by registered post to the Superintendent, Central Prison, as is evidenced from Ext.P17. The detenue asserts that the said copy of representations received by the Superintendent was torn off and the detenue was asked to make a representation in his own hand. This had prejudiced him considerably for reason of** W.P.(Crl.) No.253 of 2020 5 **compelling contentions taken in Exts.P15 & P16 having not reflected in the handwritten representation. It is then argued that the bail orders in Crime Nos.833 of 2015 and 945 of 2018 were not enclosed with the documents supplied to the detenue, nor were the conditions imposed therein considered by the detaining authority. Reliance is placed on** _**Nalini v. State of Kerala [2013 KHC 746],**_ **a Division Bench judgment of this Court. If the conditions in the bail order is violated, the Police could have moved the appropriate Court for cancellation of bail, which was more than sufficient to detain the petitioner. Lastly it is argued that the Government has mechanically considered the representation since the order rejecting it, is passed just a day after the order affirming the Advisory Board's opinion is issued.** **4. Learned Government Pleader asserts that the arrest was made only on 11.08.2020 and the** W.P.(Crl.) No.253 of 2020 6 **detenue was taken from judicial custody as per the order of the jurisdictional court. The approval order came on 24.08.2020 on the 12[th] day, and within the period provided under Section 12 of KAAPA; which excludes public holidays in between. Due to the pandemic restrictions even Saturdays were holidays for Government Offices. The contention that the detenue was taken first to a hospital is denied. Immediately on arrest, the entire documents were supplied to the detenue by the Station House Officer, Ochira, who arrested him. Proof of service is available by way of acknowledgment of the petitioner available in the files produced before this Court. It is pointed out that after arrest he was first taken to the** **Central Prison and Correctional Home, Thiruvananthapuram on the 11[th] itself and then admitted to S.R. Medical College, Varkala for facilitating Covid testing on the very next day. Later, after reverse quarantine, the detenue was** W.P.(Crl.) No.253 of 2020 7 ## **brought to the Central Prison on 16.09.2020.** **5. It is pointed out from the files that the detenue was informed of the legal assistance facilitated by the Superintendent of Central Prison on 12.08.2020 itself. With respect to his contention regarding the right to appear personally, it is argued that there was no request submitted expressing his desire to be personally heard. In any event due to restrictions in force due to pandemic, a personal hearing was not possible and the Advisory Board had permitted a legal practitioner to appear, who has also submitted argument notes before the Advisory Board. The representation as available in the files, handwritten by the detenue is similar to that produced at Exts.P15 & P16. Though the matter was referred to the Advisory Board on 26.08.2020, the representation was forwarded to the Advisory Board, which was considered while passing the order affirming the detention order. The delay in** W.P.(Crl.) No.253 of 2020 8 **executing the detention order was only due to the petitioner having absconded. He also involved himself in Crime No.1243 of 2019 of Ochira police Station, which incident occurred on 03.12.2019. Only when he surrendered in that crime on 03.08.2020, the whereabouts were known to the Police, who immediately executed the detention order. There is no break of live link, especially when the detenue had committed a crime just prior to the detention order and had absconded before and after that. The commission of the said crime also stands against the detenue in raising a contention regarding the condition imposed in the bail order. Moreover, the bail order was specifically considered by the detaining authority. In conclusion, it is argued that the representation of the petitioner was independently considered and that there was no reason to find any prejudice having been caused to the detenue.** ## **6. We have anxiously considered the** W.P.(Crl.) No.253 of 2020 9 **contentions raised by the petitioner and the State. The detenue was arrested on 11.08.2020. The contention that he was arrested on 08.08.2020 for the purpose of preventive detention cannot be believed for a moment, as the files reveal the official memorandum issued by the JFCM Court, Karunagappally to the Sub Inspector of Police Ochira granting permission to effect the formal arrest of the accused involved in Ochira Police Station Crime No.1243 of 2019 in connection with Ext.P1 detention order; based on which the arrest was effected on 11.08.2020. Before arrest he was in judicial custody. On arrest, as revealed from the files, the detenue was supplied with all the documents in support of the order of preventive detention and acknowledgment received, by the Officer, who made the arrest [page 45]. The production of the detenue before the Central Prison is also evidenced by the communication issued to the detenue by the Superintendent of** W.P.(Crl.) No.253 of 2020 10 **Central Jail, Thiruvananthapuram dated 12.08.2020, which also is acknowledged by the detenue [page 30]. The arrest having been made on 11.08.2020, the approval order passed on 24.08.2020 is within the time provided under Section 3(3) of KAAPA.** **7. The delay in making a representation for reason of his hospitalisation and quarantine cannot be countenanced since the protocol was brought in due to the extra-ordinary circumstance of the spreading pandemic. The further contention raised is with respect to an effective representation not having been enabled before the Advisory Board for reason of the Superintendent having not permitted the detenue to sign on the draft copy forwarded by his father, produced as Exts.P15 & P16. We perused the handwritten representation made by the detenue, available in the files at pages 309 to 318. We have compared it with Exts.P15 & P16. The specific contention raised by the learned Counsel is that the grounds** W.P.(Crl.) No.253 of 2020 11 **appearing in the last but two paragraphs have not been addressed, which causes prejudice to the detenue. The last but second paragraph as per Ext.P15 is the ground raised on the conditional bail orders in Crime No.833 of 2015 and 945 of 2018 having not been considered by the detaining authority. The last but one paragraph contains the ground of the detenue having been taken after arrest straight to the quarantine centre, which disabled him from giving an effective representation at the earliest point of time as per Article 22(5) of the Constitution of India. On comparing Exts.P15 & P16, with the handwritten objection, we find those paragraphs having been included in the handwritten objection as the last but two paragraphs. What is missing is only the contention in Exts.P15 & P16 in the last but one paragraph that the Jail Superintendent did not offer any assistance and that the detenue was not even able to see the Jail Superintendent.** W.P.(Crl.) No.253 of 2020 12 **Obviously, these are grounds supplied by the person who drafted Exts.P15 & P16, who had no contact with the detenue before drafting the same. The said contention does not appear in the handwritten objection obviously because even according to the detenue, the Superintendent tore off the draft objections and asked him to make a handwritten representation. The detenue hence was in the presence of the Superintendent, when the objections were written. We find no reason to find any prejudice for reason of the Superintendent having not permitted the detenue to merely put his signature in Exts.P15 & P16 representation before being forwarded to the Government and the Advisory Board. In fact on a comparison of the documents we are sure that the handwritten objection was one copied out from the draft send by the detenue's father.** **8. As to the contention regarding personal hearing, the Advisory Board had specifically** W.P.(Crl.) No.253 of 2020 13 **informed the detenue by communication dated 24.09.2020 that personal hearing is not practical due to COVID 19 pandemic restrictions. The detenue was allowed to furnish further details or arguments through the Superintendent of Prison. The detenue is said to have sought for legal representation which was permitted. The Advocate filed a detailed argument note before the Advisory Board along with the Vakalath executed by the detenue. We hence do not find any violation of the provisions of Section 7 nor is any prejudice caused to the detenue by denying permission to personally appear before the Advisory Board; which was also in the extra ordinary circumstance of the regulations imposed due to the pandemic situation.** **9. The next contention is with respect to the conditions in the bail orders having not been looked into by the detaining authority. The contention was raised with respect to Crime Nos.833/2015 and 945/2018, both figuring along** W.P.(Crl.) No.253 of 2020 14 **with others in support of the detention order. Before us the learned Counsel for the detenue produced only the bail order in Crime No.945/2018. As far as Crime No. 833/2015; it is the oldest crime referred to in the detention order. Whatever the conditions be, it has not deterred the detenue from continuously engaging in criminal activities as is evidenced from the other crimes registered in the very same Police Station at Ochira. The bail order in Criminal MC filed in Crime No.945/2018 was passed on 17.04.2019, before the detention order dated 17.12.2019. However, after being released on bail, a crime was registered in the Ochira Police Station as Crime No. 1243/2019 regarding an incident which occurred on 03.12.2019 under Sections 143, 147, 148, 294B, 322, 324, 355, 506 and 149 of IPC and Section 27 of the Arms Act. The detention order has also considered the bail order and specifically found that the said order is not an effective deterrent** W.P.(Crl.) No.253 of 2020 15 **on the detenue who is a habitual offender.** **We do not find any reason to interfere with the Government order affirming the opinion of the Advisory Board produced at Ext.P21. The Government has also independently considered the representation filed by the petitioner by Ext.P18 dated 15.10.2020. The mere fact that the representation was rejected one day after Ext.P21 order does not necessarily lead to a conclusion that the same was mechanical. We dismiss the writ petition. There is no order as to costs.** **Sd/-** **K. VINOD CHANDRAN, Judge.** **Sd/M.R. ANITHA, Judge.** **sp/jma/18/01/2021** W.P.(Crl.) No.253 of 2020 16 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER NO DCKLM/12371/2019/M9(CC) DATED 17.12.2019 EXHIBIT P2 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTING THE ORDER DATED 17.1.2019** **EXHIBIT P3 THE JAIL ADMISSION AUTHORIZATION DATED 17.12.2019** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO 833/2015 OF OCHIRA POLICE STATION** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE FINAL REPORT IN 833/2015 OF OCHIRA POLICE STATION** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 1843/2015 OF OCHIRA POLICE STATION** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 1843/2015** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 2010/2015 OF OCHIRA POLICE STATION** - **EXHIBIT P9 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 945/2018 OF OCHIRA POLICE STATION** - **EXHIBIT P10 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO 945/2018 OF OCHIRA POLICE STATION** - **EXHIBIT P11 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 880/2019 OF OCHIRA POLICE STATION** - **EXHIBIT P12 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME 880/2019 OF OCHIRA POLICE STATION** W.P.(Crl.) No.253 of 2020 17 - **EXHIBIT P13** - **EXHIBIT P14** - **EXHIBIT P15** - **EXHIBIT P16** - **EXHIBIT P17** - **EXHIBIT P18** - **EXHIBIT P19** - **EXHIBIT P20** - **EXHIBIT P21** - **A TRUE PHOTOCOPY OF THE FIR IN CRIME NO 348/2016 OF OCHIRA POLICE STATION** - **A TRUE PHOTOCOPY OF THE APPROVAL ORDER DATED 24.8.2020 ISSUED BY THE 1ST RESPONDENT** - **A TRUE PHOTOCOPY OF THE REPRESENTATION ADDRESSED TO THE 1ST RESPONDENT DATED 17.9.2020** - **A TRUE PHOTOCOPY OF THE REPRESENTATION ADDRESSED TO THE ADVISORY BOARD DATED 17.9.2020** - **A TRUE PHOTOCOPY OF THE POSTAL RECEIPT ISSUED FROM THE SP KAYAMKULAM RMS COUNTER DATED 19.9.2020** - **A TRUE PHOTOCOPY OF THE ORDER DISPOSING OF THE REPRESENTATION DATED 15.10.2020** - **A TRUE PHOTOCOPY OF THE ARGUMENT NOTE SUBMITTED BY THE COUNSEL OF THE DETENU** - **A TRUE PHOTOCOPY OF THE POSTAL RECEIPT DATED 1.10.2020** - **A TRUE PHOTOCOPY OF THE CONFIRMATION ORDER DATED 14.10.2020**