Point of Law: It is well settled, preventive detention is a harsher remedy, whereby the life and liberty of a person is at stake even without a formal trial to adjudicate his guilt.

JUDGMENT :

C. JAYACHANDRAN, J.

1. Ext.P3 detention order dated 25.01.2022 issued under Section 3 of the Kerala Antisocial Activities (Prevention) Act 2007 [for short ‘KAA(P)A’] is under challenge in this Writ Petition. As per the order impugned, petitioner's son, Jose Antony @ Kalan Jose (detenu, for short) was directed to be detained in the Central Prison, Thiruvananthapuram for a period of one year.

2. Heard Smt. Sai Pooja, learned counsel for the petitioner and Sri. Anas, learned Government Pleader (attached to the Advocate General), on behalf of the respondents. Perused the records.

3. Ext.P3 order is challenged by the petitioner on the following grounds:

(i) There is delay of 195 days from the date of last prejudicial activity (i.e. 14.07.2021 - the date on which FIR was registered in the last crime bearing No. 460 of 2021 of Alappuzha North Police Station) and the date of Ext.P3 order (25.01.2022), thereby severing the live link between the two. The delay is substantial, which is not explained. Even a delay of 4 months was held to be fatal by a Division Bench of this Court in Abhida Beevi vs. State of Kerala and Others, 2013 (1) KLT 286.

(ii) All conditions stipulated in the order granting bail in the last crime (Crime No. 460 of 2021 of Alappuzha North Police Station) was scrupulously followed by the detenue, wherefore, the subjective satisfaction arrived at by the second respondent/District Magistrate - to the effect that there is no way, except a detention order, to restrain the detenue from indulging in unlawful activities - smacks of total non application of mind.

(iii) All the crimes registered against the detenue are within the limits of Alappuzha District, wherefore, the feasibility of achieving the purpose by resorting to section 15 of the Act was not considered by the second respondent.

(iv) No crime was committed by the detenue for a period of six months, when proceedings dated 10.04.2019 was initiated under Section 107 CrP.C. In such circumstance, it should have been found by the second respondent that proceedings under section 107 Cr.P.C. would have been amply sufficient to prevent the detenue from indulging in any crime.

(v) Out of the four crimes considered, two are cases instituted suo-moto on the complaints of police officers, the reckoning of which is bad in law, in view of the specific exclusion made in the definition of 'known rowdy' in S.2(p) (iii).

Learned counsel also referred to certain aspects touching the merits of four cases reckoned for the purpose of detention, which we are not detailing here, for, the same is not germane for consideration within the scope of the present proceedings. On the above enumerated grounds, learned counsel contended that Ext.P3 order impugned is not sustainable in law.

4. Refuting the above allegations, learned Government Pleader invited our attention to the two counter affidavits filed by respondents 1 and 2, based upon which, it was contended as follows: The delay of 195 days between the date of last prejudicial activity and the date of detention order is properly explained in paragraph no. 24 of Ext.P3 detention order. The fact that the detenu was in judicial custody; that recommendation for preventive detention was made prior to his release on bail; and that the District Magistrate/District Collector was fully pre-occupied in taking steps to contain the spread of Covid-19 pandemic were espoused to answer the delay.

5. Learned Government Pleader submitted that the bail conditions in Crime No. 460 of 2021 would not fetch the desired result, since similar conditions in the bail orders in earlier crimes did not deter the detenu from committing subsequent crimes.

6. Recourse to remedy under Section 15 of the KAA(P)A was not feasible because of the gravity of the offences involved. In the last crime, the detenu, who is the first accused, trespassed into the house of a 51 year o