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High Court of Kerala
K.T. SANKARAN & M.L. JOSEPH FRANCIS
V.M. Varkey
Versus
State of Kerala Represented by the Additional Chief Secretary Home Affairs Department, Government Secretariat & Others
WP(Crl.).No. 153 of 2012 (S)
Decided On : 08-06-2012
Kerala Anti Social Activities (Prevention) Act 2007 - Section 3 and 12 - Detention - Whether period of six months mentioned in S.12 is to commence from date of detention or from date of order of detention ? Whether order of detention can be executed even after six months of date of issue of order ? If order of detention could not be executed due to contumacious act of detenu, whether he can contend that live and proximate link between grounds of detention and purpose of detention was snapped by delay in execution of order of detention ? If order of detention shows various crimes and courts where crimes are registered, whether Police Officer entrusted with duty to execute order of detention, is bound to enquire about proceedings in various courts where detenu is expected to appear ? whether there is long and unexplained delay between the date of the order of detention and the date of arrest of the detenu - Held, Order of detention was issued on the ground that detenu was involved in several crimes and is considered as known rowdy as per S.2(p)(iii). Same is challenged on the ground that order of detention was executed after six months of date of issue of order and long gap in passing order of detention and execution has snapped the nexus between alleged illegal activity and order of detention - Court held that (i) Period of six months mentioned in S.12 is to commence from date of detention and not from date of order of detention (ii) Order of detention can be executed even after six months of date of issue of order (iii) If order of detention could not be executed due to contumacious act of detenu, he cannot be heard to say that live and proximate link between grounds of detention and purpose of detention was snapped by delay in execution of order of detention and (iv) Where details of crimes and Courts are mentioned in detention order, police officer entrusted with duty to execute order of detention is bound to enquire about proceedings in various courts in which detenu is expected to appear - 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 - 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 - Court hold that the continued detention of the detenu is illegal, unless his detention is required in connection with any other case - Writ Petition (Criminal) is allowed.
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 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 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 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 preven
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