V.M. Varkey v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934 ## **WP(Crl.).No. 153 of 2012 (S)** PETITIONER: ------------- V.M.VARKEY, AGED 67 YEARS S/O.MATHAI, VALLATHUKARAN HOUSE THURUTHISSERY, MEKKAD P.O., ANGAMALI VIA ERNAKULAM DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: -------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY HOME AFFAIRS DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, PIN-695001. 2. THE DISTRICT MAGISTRATE AND THE DISTRICT COLLECTOR, ERNAKULAM, PIN-682030. 3. THE DISTRICT POLICE CHIEF ERNAKULAM RURAL, ALUVA, ERNAKULAM DISTRICT, PIN-683001. 4. THE CIRCLE INSPECTOR OF POLICE, NEDUMBASSERY AIRPORT POLICE STATION, NEDUMBASSERY, ALUVA, ERNAKULAM DISTRICT PIN-683001. 5. THE SUPERINTENDENT OF CENTRAL PRISON VIYYUR P.O., THRISSUR, PIN-680010. BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN & M.L.JOSEPH FRANCIS, JJ.** **---------------------------------------------------W.P.(CRL.) NO.153 OF 2012 ---------------------------------------------------Dated this the 8[th ] day of June, 2012** ## **JUDGMENT** ## **K.T.Sankaran, J.** The question involved in the Writ Petition (Criminal) is whether detention of a person under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'KAAPA') pursuant to his arrest, six months after the order of detention, is vitiated since the maximum period for which he can be detained under Section 12 of KAAPA shall not exceed six months. 2. The petitioner is the father of Binoy, who was detained pursuant to Ext.P1 order of detention dated 27.7.2011 issued under the KAAPA. Binoy, the detenu, was arrested on 3.2.2012. The order of detention was issued on the ground that the detenu was involved in several crimes and therefore, he is to be considered as 'known rowdy' as per Section 2(p)(iii) of KAAPA. The specific case W.P.(CRL.) NO.153 OF 2012 S :: 2 :: of the petitioner is that the continued detention of the detenu is illegal on two grounds. (1) The order of detention was executed after six months of the date of issue of the order. The maximum period of detention contemplated under the Act is six months. Therefore, the foundation of the order of detention is lost. (2) The detenu appeared before Court in three of the crimes referred to in the order of detention on several dates after the order of detention. Therefore, it cannot be said that the detenu was absconding. This would indicate that there was inordinate delay in executing the order of detention. The long gap in passing of the order of detention and the execution of the same has snapped the nexus between the alleged illegal activity and the order of detention. 3. As regards the first point, the learned counsel for the petitioner relied on the decision in **Soja Beegum** v. **Additional Chief Secretary to Government** (2009 (4) KLT 550), wherein it was held thus: “Under S.12 of the KAAPA, the maximum period of detention permissible is six months. The foundation of an order of detention under S.3 of the KAAPA is the perception of the possible contumacious conduct during W.P.(CRL.) NO.153 OF 2012 S :: 3 :: the next six months from the date of passing the order. In these circumstances, the very foundation of the necessity for detention will be lost, if the authorities do not show eagerness to execute the warrant of arrest. Executing warrant of arrest beyond the period of six months is really unnecessary as the perception of the detaining authority is evidently the possibility of contumacious behaviour during six months to follow the date of the order.” 4. On a careful consideration of the decision in **Soja Beegum's case** , we are of the view that the above quoted passage does not constitute the dictum laid down by the Division Bench. It could only be said that the aforesaid observations were made as passing reference. 5. Section 12 of KAAPA provides that the maximum period for which any person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention. It is true that the order of detention is to be executed without delay. But it cannot be said that detaining a person beyond the period of six months is unnecessary on the ground that the perception of the ## W.P.(CRL.) NO.153 OF 2012 S :: 4 :: detaining authority is evidently the possibility of contumacious behaviour during six months after the date of the order. The period of six months mentioned in Section 12 of KAAPA is to commence from the date of detention and not from the date of the order of detention. 6. In **Assia** v. **State of Kerala** (2000 (1) KLT 673), while dealing with a case of detention under the COFEPOSA Act, the Supreme Court held thus: “6. In view of the above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is long and unexplained delay between W.P.(CRL.) NO.153 OF 2012 S :: 5 :: date of order of detention and arrest of detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. _(See Bhawarlal Ganeshmalji v. State of Tamil Nadu - AIR 1979 SC 541)_ . Whether delay was unreasonable or not depends on the facts and circumstances of each case. If there is unreasonable delay between date of order of detention and date of arrest of detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing detention order and consequently render detention order bad and invalid because the live and proximate link between grounds of detention and the purpose of detention is snapped in not arresting detenu.” 7. The question to be considered is not whether six months elapsed from the date of the order of detention to the date of arrest of the person concerned. The question is whether there is long and unexplained delay between the date of the order of detention and ## W.P.(CRL.) NO.153 OF 2012 S :: 6 :: the date of arrest of the detenu. If the delay is satisfactorily explained and if the Court finds that the detenu could not be arrested and detained not because of any fault on the part of the executing authority, the detenu cannot take advantage of the delay in execution of the order of detention and contend that his detention is illegal. If the order of detention could not be executed due to the contumacious act of the detenu, he cannot be heard to say that the live and proximate link between the grounds of detention and the purpose of detention was snapped by the delay in execution of the order of detention. We are of the view that the purpose of an order of detention under Section 3 of KAAPA is not only to prevent the detenu from indulging in illegal activities for a period of six months from the date of passing of the order but to prevent him from indulging in such activities in future. The requirement under Section 3 of the KAAPA is the satisfaction of the detaining authority that with a view to prevent a person from committing any anti-social activity within the State of Kerala in any manner, it is necessary to detain such person. Such satisfaction of the detaining authority is not with regard to the prejudicial activity of the person concerned for a future period of six months. We cannot read into Section 3 such a limitation on the ground that the maximum period of detention ## W.P.(CRL.) NO.153 OF 2012 S :: 7 :: provided under Section 12 is only six months. It cannot be said that once the period of six months is elapsed from the date of the order of detention, a person cannot be detained at all on the ground that the live and proximate link between the grounds of detention and the purpose of detention is snapped. ## 8. In **Naresh Kumar Goyal** v. **Union of India and others** ((2005) 8 SCC 276), the Supreme Court held thus: “8. It is trite law that an order of detention is not a curative or reformative or punitive action, but a preventive action, avowed object of which being to prevent the antisocial and subversive elements from imperilling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.” W.P.(CRL.) NO.153 OF 2012 S :: 8 :: 9. In the Writ Petition (Criminal), the following specific averments have been made. “7. The Crime No.637/2006 of Thrissur Town East Police Station which was considered by the 2[nd] respondent in Exhibit-P1 was charge sheeted before the Judicial First Class Magistrate Court and it was taken on file as C.P.No.56/2009. The detenu and other accused appeared before the committal court and the case was committed to the Sessions Court for trial. The Court of Session, Thrissur taken the case on file as S.C.No.141 of 2011 and made over to the Principal Assistant Sessions Court, Thrissur for trial. The detenu appeared before the Principal Assistant Sessions Curt, Thrissur in S.C.No.141 of 2011 on 23.09.2011, 26.11.2011 and on 10.01.2012, after the passing of Exhibit P1 detention order. The said fact was known to the 4[th] respondent and other police officers. A true copy of the proceedings of Principal Assistant Sessions Judge, Thrissur in S.C.No.141 of 2011 is produced herewith and marked as **Exhibit-P4** . 8. The Crime No.316/2006 of Munambam Police Station which was considered by the 2[nd] respondent in Exhibit-P1 was charge sheeted before the Judicial First Class Magistrate Court, North Paravur and it was taken on file as C.P.No.38/2011. The detenu and other ## W.P.(CRL.) NO.153 OF 2012 S :: 9 :: accused appeared before the committal court on 18.07.2011, 30.10.2011 and finally on 29.12.2011 the case was committed to the Sessions Court for trial. On all these dates the detenu was personally present before the Court. The police officer representing the Munambam Police Station was also present in the Court. 9. The Crime No.527/2006 of Vadakkekara Police Station which was considered by the 2[nd] respondent in Exhibit-P1 was charge sheeted before the Judicial First Class Magistrate Court, North Paravur and it was taken on file as C.P.No.86/2009. The detenu and other accused appeared before the committal court and the case was committed to the Sessions Court for trial. The Court of Session, Ernakulam taken the case on file as S.C.No.589 of 2011 and made over to the Additional Sessions Court, North Paravur for trial. The detenu appeared before the Additional Sessions Court, North Paravur in S.C.No.589 of 2011 on 28.01.2012. The police officer representing Vadakkekara Police Station was also present in the Court. 10. The Crime No.250/2007 of Nadapuram Police Station which was considered by the 2[nd] respondent in Exhibit-P1 was charge sheeted before the Judicial First Class Magistrate Court, Nadapuram. The detenu and other accused appeared before the committal court and W.P.(CRL.) NO.153 OF 2012 S :: 10 :: the case was committed to the Sessions Court for trial. The Court of Session, Kozhikode taken the case on file as S.C.No.140 of 2009 and made over to the Additional Sessions Court, Vadakara. The detenu appeared before the Additional Sessions Court, Vadakara in S.C.No.140 of 2009 on many dates after the passing of the detention order.” 10. As regards the averments in paragraphs 7 to 10 of the Writ Petition, the only answer in the counter affidavit is that the detenu had appeared before different courts in Thrissur and Kozhikode Districts and probably this was not known to the police officers of Ernakulam District to whom the memo for execution of the order of detention was entrusted. Therefore, they confined their enquiry to the house of the detenu and the suburbs. This is not a valid explanation at all. In the order of detention, the various crimes registered in different Districts have been shown. The courts in which the cases are pending are also mentioned in the order of detention. The police officer who was entrusted with the duty to execute the order of detention is expected to arrest the detenu and, for that purpose, he is also bound to enquire about the proceedings in various courts in which the detenu is expected to appear. In **Soja** W.P.(CRL.) NO.153 OF 2012 S :: 11 :: ## **Beegum** v. **Additional Chief Secretary to Government** (2009 (4) KLT 550), it was held thus: “16. As to what gap of time would be crucial or costly, there can be no rigid standards. In fact, a perusal of the decisions referred above as also the other decisions show that even a gap of time of 1 ½ months had been held to be fatal in some cases whereas in some other cases even the gap of three years has been held to be not fatal. The significance and the consequence of the delay must vary from facts to facts. In the instant case, what appeals to us particularly is the fact that the detaining and executing authorities must have known that the detenu, who was on bail in the only three cases relied on by the detaining authority, can easily be located in the courts on the date of posting or in the alternative the courts concerned could have been requested to insist on the presence of the detenu. Such courts could have been prevailed upon to insist that the detenu must appear and his sureties must produce him before such courts. On the contrary, we find that even when he actually appeared, no effort was made at all to arrest the detenu.” The principles referred to above would squarely apply to the facts of the present case. W.P.(CRL.) NO.153 OF 2012 S :: 12 :: 11. For the aforesaid reasons, we hold that the continued detention of the detenu is illegal. He shall be set at liberty forthwith, unless his detention is required in connection with any other case. The Writ Petition (Criminal) is allowed as above. The Registry shall communicate the order to the Superintendent of Central Prison, Viyyur, Thrissur. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge** ahz/ W.P.(CRL.) NO.153 OF 2012 S :: 13 :: ## **18.6.2012** : It was brought to our notice that in paragraph 6 of the judgment it was wrongly stated that the decision in **Assia** v. **State of Kerala** (2000 (1) KLT 673) is the decision of the Honourable Supreme Court. In fact, it is a decision rendered by the Kerala High Court. Therefore, the words 'the Supreme Court held thus' shall be substituted by the following words: “It was held thus”. **(K.T.SANKARAN) Judge** **(M.L.JOSEPH FRANCIS) Judge**