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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
Devika K.D., W/o Ratheesh – Appellant
Versus
State Of Kerala – Respondent
WP(Crl.) No. 588 of 2022
Decided on : 07-10-2022
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 3(1), (3), 10(4), (3), 7(2), 9(1), 2(p)(iii), (t) – Indian Penal Code, 1860 - Sections 34, 447, 506 and 109 – Criminal Procedure Code, 1973 - Section 107 - Pleas of Habeas Corpus - Detention Order - Seeking pleas of Habeas Corpus and Certiorari, involving challenge against a detention order passed against detenu - It was bounden duty of those authorities, more particularly, detaining authority, to consider impact and effect of said opinion of Advisory Board, to decide as to whether ingredients of Section 13(2) are duly fulfilled – Para 52.
Finding of the Court :
Crucial and relevant aspects of matter, as above, have been completely eschewed and excluded from decision making process of detaining authority - Hence, this aspect will be fatal to decision making process, which led to Ext.P1 - Further, it is also pointed out by learned Prosecutor that one of bail cancellation applications was rejected by Sessions Court subsequently, and another bail cancellation application is even now pending before this Court - This aspect would show that option of bail cancellation application was not sufficient to meet requirement to prevent prejudicial activities of detenue – Court is not impressed with this argument for very same reasons given above, more so, in view of requirements of Section 13(2)(iii) – Court is essentially in process of judicial review of decision making process and court is not sitting as an appellate authority on decision of detaining authority and hence, court is constrained to take view that, due to exclusion of consideration of a highly relevant and crucial aspects, as above, decision making process is fatal and vitiated - True that, court would fully accept contention of Sri.K.A Anas, learned Prosecutor appearing for respondents, that even if fifth crime is totally eschewed, still first four crimes could have been reckoned as a valid basis for subjective satisfaction under Section 3(1), in facts of this case - But, non consideration of above said crucial and relevant materials of previous opinion of Advisory Board and Ext.P2 order and requirements of Section 13(2)(iii), has vitiated decision making process, which led to subjective satisfaction in relation to first four crimes and therefore, court have to interdict decision making process - Upshot of above discussions is that impugned decision making process, which led to impugned Ext.P1 detention proceedings, is liable to be interdicted for quashment, in present judicial review proceedings.
Result: W.P disposed of.
JUDGMENT :
Alexander Thomas, J.
The prayers in the instant Writ Petition (Criminal), seeking the pleas of Habeas Corpus and Certiorari, involving the challenge against a detention order passed against the detenu under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act (KAAP Act), are as follows:
ii. Issue a writ of habeas corpus commanding the respondents to produce the body of the detenu viz. Ratheesh @ Kara Ratheesh, aged 39 years, S/o. Ravi, Chethikkattu, Kadappara, Mattor Village, Malayattoor, Ernakulam, PIN683 587, the husband of the petitioner who is illegally detained in Central Prison, Kannur before this Hon'ble Court and set him at liberty forthwith. and
iii. Grant such other relief as this Hon'ble Court deems fit and proper in the circumstances of the case including the costs of this Writ Petition (Criminal).”
2. Heard Shri.Ajeesh M. Ummer, the learned counsel appearing for the petitioner and Sri.K.A.Anas, the learned Prosecutor appearing for the respondents.
3. The petitioner is the wife of the detenu Shri.Ratheesh @ Kara Ratheesh, who has been ordered to be detained in terms of Section 3(1) of the KAAP Act, 2007.
4. In the instant case, R4 (Sponsoring Authority) has given report dated 14.02.2022 to the 2nd respondent-authorised Detaining Authority (District Collector & District Magistrate), recommending that, in view of the involvement of the detenu in five crimes mentioned therein, it is a fit case for the Detaining Authority to exercise its discretion so as to form subjective satisfaction to issue orders of detention to prevent the detenu from committing further prejudicial anti-social activities, as conceived in the above Act. After consideration of the Sponsoring Authority's report, the 2nd respondent-authorised Detaining Authority has passed Ext.P1 detention order dated 21.04.2022, ordering, under Section 3(1) of the KAAP Act, that the detenu be detained. Ext.P1 detention order has been duly executed with the arrest and detention of the detenu on 21.04.2022 itself. According to the respondents, the detention order, the grounds of detention and the relevant documents thereto have been duly served on the detenu on 21.04.2022 itself, as evidenced by the receipt given by him. Further, it is common ground that Ext.P1 detention order dated 21.04.2022 has been duly approved by the 1st respondent, a competent authority of the State Government, the Home Department, under Section 3(3) of the above Act, on 06.05.2022. Thereafter, R1-Government has placed the matter for consideration of the Advisory Board on 10.05.2022. The 5th respondent-Advisory Board has given opportunity of hearing to the detenu on 07.06.2022 and has given the report on 10.06.2022, recommending to the Government that there is sufficient cause for detaining the detenu, so as to enable the Government to confirm Ext.P1 detention order. Thereafter, R1-competent authority of the State Government, the Home Department has issued orders, as per G.O.(Rt)No.1744/2022/Home dated 24.06.2022, confirming Ext.P1 detention order dated 21.04.2022, in terms of Section 10(4) of the Act. In the confirmation order, the Government has opined that there is sufficient cause for the issuance of Ext.P1 detention order and that the detenu may thus be preventively detained for a period of six months from 21.04.2022, which is up to 20.10.2022.
5. In the instant case, the last prejudicial activity, as disclosed by the fifth crime in this case, is said to be committed on 29.12.2021. The time period between the last prejudicial activity and the detention order is 3 months and 24 days. There is no controversy that the respondents have complied with the time lines stipulated in Section 7(2), regarding the communication of the commencement of the detention order within five days, issuance of the approval order under Section 3(3) w
Sec.3(3) mandates that Government shall take a decision on approval of detention order, within 12 days from date of detention of detenu, after excluding public holidays.
Detention orders can be valid even if the individual is in custody, provided the authority believes there is a risk of release and subsequent prejudicial activities.
The court affirmed that previous crimes may be considered in detention orders under the Kerala Anti-Social Activities Act, with permissible delays explained adequately by authorities.
If person concerned is in judicial custody and if there is likelihood of his being released shortly, then detaining authority may stay its chance for a short while and think of passing an order of de....
The advisory board's functions under the Preventive Detention Act are not judicial, and its reports do not equate to judicial decisions, nor are grounds for detention required to be explicitly detail....
(1) Preventive detention – Power of preventive detention is qualitatively different from punitive detention – It is not a parallel proceeding.(2) Inability on part of State’s police machinery to tack....
Detenu will satisfy definitional parameters of “known goonda” as per Section 2(o) read with Section 2(j) of Act.
Preventive detention orders must be based on specific, documented grounds that are communicated to the detainee, ensuring compliance with constitutional safeguards under Articles 21 and 22.
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