Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Ker) 61

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.Vinod Chandran, M.R.Anitha, JJ.
Mary Selma – Petitioner
Versus
State Of Kerala Represented By The Addl. Chief Secretary (Home) And Ors. – Respondents
WP(Crl.).No.312 OF 2020
Decided On : 02-02-2021

Advocates:
Advocate Appeared:
For the Petitioner: Sri.C.Rajendran, Sri.B.K.Gopalakrishnan, Advs.
For the Respondent: Sri.K.A.Anas, Government Pleader

Important points:
The Detaining Authority has not verified any documents to show that after Ext.P14 the detenu has been released from jail by any competent Court. If a release has been effected, necessarily the conditions imposed on release had to be verified by the Detaining Authority. So there is absolute non- application of mind on the part of the Detaining Authority in passing the impugned order.

Headnote:
The Kerala Anti-Social Activities (Prevention) Act, 2007 - Sec.3(1) -Non- application of mind is writ large on the part of the 2nd respondent/Detaining Authority-“known rowdy” as defined under Sec.2(p) of KAAPA since Sec.2(p)(iii)-Person as “known rowdy” -Three separate instances -Investigation or enquiry by a competent Police Officer or Authority on complaints initiated by persons other than Police officers not forming part of the same transaction is pending within seven years prior to the order of detention
Statement of facts:
Writ petition has been filed by the wife of the detenu, challenging the order of detention issued by the second respondent/District Magistrate.
Finding of the court:
The absence of a bail order releasing the detenu from judicial custody in Crime No.1052/2019 is pointed out only to find non- application of mind in passing an order of preventive detention on the part of the Detaining Authority and it shall not affect the trial in the two Crimes registered subsequently.
Result: Writ petition allowed

JUDGMENT :

M.R.Anitha, J.

1.This writ petition has been filed by the wife of the detenu, challenging the order of detention issued by the second respondent/District Magistrate.

2. Ext.P1 is the detention order passed by the District Magistrate, Alappuzha/2nd respondent dated 19.8.2020 under Sec.3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter be referred as 'KAA(P)A'). Detention order has been executed on 28.8.2020. 2nd respondent passed the detention order on the basis of the reports of the Superintendent of Police (Rural), Alappuzha (3rd respondent), the Sponsoring Authority.

3. The husband of the petitioner (hereinafter referred as detenu) has been classified as a 'known rowdy' on the basis of eight cases registered against him. According to the petitioner, the impugned order passed is in total violation of Sec.3(3) of KAA(P)A. The approval has not been granted in 12 days from the date of arrest. It is alleged that there is delay in consideration of the representation by the Government. Petitioner further alleges that the detenu was served illegible, non readable and incomplete documents (six in number) which caused prejudice in making an effective representation. It is her further case that there were no records before the Detaining Authority while passing the impugned order to prove that the detenu was released on bail after Ext.P14 dismissal of bail; order in Crime No.1052/2019 of Mannachery Police Station. So the detenu can only be presumed as remaining in judicial custody and there is no consideration by the Detaining Authority as to why the detenu should in that context be detained in a preventive manner. Hence according to the petitioner, the detention order passed by the Detaining Authority, approved and confirmed by the authorities concerned, is without any application of mind and is illegal and unconstitutional.

4. Counter affidavit has been filed by the 1st and 2nd respondents separately refuting the allegations of the petitioner and supporting the impugned order passed by the Detaining Authority. According to them, there is strict compliance of Sec.3(3), which excludes the holidays, in computation of 12 days. Copies of the records have been furnished to the detenu as far as possible and the records produced before the Detaining Authority by the Sponsoring Authority itself would reveal that the petitioner was on bail. Hence there is no question of any prejudice having been caused to the detenu and the impugned order has been passed perfectly in accordance with law considering all the documents produced before the Detaining Authority on strict application of mind and hence there is no reason whatsoever to interfere with the order passed by the Detaining Authority.

5. We will deal with the objection raised by the petitioner one by one. According to the petitioner, there is non compliance of Sec.3(3) of KAPPA. Detention order has been passed on 19.8.2020, executed on 27.8.2020 and approved by the Government on 16.9.2020 which is beyond 12 days prescribed under Sec.3(3). Sec.3(3) provides that the Authorized Officer under subsection (2) of Sec.3 shall forthwith report the factum of passing the detention order to the Government and the Director General of Police, together with copies of the order and supporting records. It further provides that no such order shall remain in force for more than 12 days from the date of detention, but of course with a rider excluding public holidays from the date of detention. According to the respondent, there is sufficient compliance of Sec.3(3) since Saturdays were also declared as holidays as per the then existing COVID-19 protocol issued by the Government of Kerala.

6. On computing the period from 27.8.2020 excluding public holidays and Saturdays (29.08.2020, 30.8.2020, 31.8.2020, 1.9.2020, 2.9.2020, 5.9.2020, 6.9.2020, 10.9.2020, 12.9.2020 13.9.2020), on 16.9.2020 when it was approved by the Government it will be the 11th day even if 27.8.2020 is included. Th

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