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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
Shahul Hameed, S/o. Ismail - Petitioner
Versus
State of Kerala, Represented by the Additional Chief Secretary to Government, Home and Vigilance Department, Government Secretariat & Ors. - Respondents
W.P. (Crl.) No. 1023 of 2022
Decided On : 22-12-2022
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 3(1) and 2(a) - Detenu - Detention order - Petitioner herein is father of detenu in this case (Shabeek @ Shafeek @ Bava, aged 38 years) - 3rd respondent - District Police Chief, as sponsoring authority, has submitted reports dated to 2nd respondent - District Collector (authorized detaining authority) stating that, in view of facts detailed therein, it is a fit case to enable the 2nd respondent to pass orders, under Sec.3(i) of above Act, so as to detain detenu, in order to prevent him from committing further prejudicial anti-social activities, as conceived in Sec.2(a) of Act - 2nd respondent has, thereupon, issued impugned Ext.P-1 detention order, dated, ordering that said authority is satisfied that, an order should be issued so as to detain detenu, under Sec.3(i) of Act, in order to prevent him from committing further prejudicial anti-social activities - According to respondents, Ext.P-1 detention order has been forthwith communicated to 1st respondent - State Government along with all relevant records - It is thereafter that 1st respondent - State Government has referred matter for considered opinion of the statutory Advisory Board - Whether detenu had moved any bail applications before competent courts and whether such bail applications are pending or whether same has been allowed or disallowed - Last crime incident was committed on 15.12.2021. None of the names of the culprits could be identified by the investigating authority - Based on fingerprint analysis, the Police came to the conclusion that the detenu is the kingpin of the crime incident and he was named as an accused only. (Para 11)
Finding of the Court :
Viewed from this perspective, Court are not in a position to hold that the time taken by 2nd & 3rd respondents, in passing Ext.P-1 detention order on, can be said to be inordinate or unexplained or per se unreasonable - In other words, Court are constrained to overrule contention of the counsel for petitioner that, live link between the last prejudicial activity and purpose of detention has been snapped in this case - Court have to bear in mind that, Court have come across many cases where orders, under Sec. 3(1) of Act, passed without advertence to various relevant and necessary factual inputs, which would invite the peril of getting the preventive detention order interdicted in judicial review proceedings - 2nd and 3rd respondents have to be extremely careful and prudent in assessing various factual inputs and scenarios as stated above and hence, Court are of view that, time taken in that regard, in issuance of Ext.P-1 detention order, cannot be said to be vitiated by unexplained or inordinate delay - So, above contention of petitioner stands rejected.
Result : Writ Petition fails and stands dismissed.
JUDGMENT :
Alexander Thomas, J.
The prayers in the instant Writ Petition (Criminal) seeking for issuance of Writs of Habeas Corpus and Certiorari, in relation to the challenge against the detention under Sec.3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “The Act” for short) are as follows :
ii. issue a writ of habeas corpus commanding the respondents to produce the body of the detenu, Shabeek @ Shafeek @ Bava, aged 38 years, S/o. Shahul Hameed, Thirunalvelikaran House, Puliparakunnu Desom, Kodakara Village, Thrissur, PIN, the son 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 reliefs 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 Sri. M.H. Hanis, learned counsel appearing for the petitioner and Sri. K.A. Anas, learned Prosecutor appearing for the respondents.
3. The petitioner herein is the father of the detenu in this case (Shabeek @ Shafeek @ Bava, aged 38 years). The 3rd respondent -District Police Chief, as the sponsoring authority, has submitted reports dated 4.6.2022, 26.6.2022 and 6.7.2022 to the 2nd respondent – District Collector (authorized detaining authority) stating that, in view of the facts detailed therein, it is a fit case to enable the 2nd respondent to pass orders, under Sec.3(1) of the above Act, so as to detain the detenu, in order to prevent him from committing further prejudicial anti-social activities, as conceived in Sec.2(a) of the Act. The 2nd respondent has, thereupon, issued the impugned Ext.P-1 detention order, dated 19.7.2022, ordering that the said authority is satisfied that, an order should be issued so as to detain the detenu, under Sec.3(1) of the Act, in order to prevent him from committing further prejudicial anti-social activities. According to the respondents, Ext.P-1 detention order has been forthwith communicated to the 1st respondent -State Government along with all the relevant records. The necessary proposal for approval of the detention order was also made and thereupon, the 1st respondent -State Government has approved Ext.P-1 detention order, on 2.8.2022, in terms of Sec.3(3) of the Act. It is thereafter that the 1st respondent -State Government has referred the matter for considered opinion of the statutory Advisory Board on 5.8.2022. The Advisory Board has given its report on 16.9.2022, informing the Government that there is sufficient cause for the issuance of Ext.P-1 detention order, pursuant to which, the 1st respondent -State Government has issued order, as per G.O.(Rt.) No. 2689/2022/HOME dated 29.9.2022, confirming Ext.P-1 detention order.
4. The detenu is said to have been involved as accused in about 45 crimes since the year 2008, but the 2nd respondent has reckoned only 5 crimes during the relevant 7 year prior period, for the purpose of the issuance of Ext.P-1 detention order. The details of the said 5 crimes are given in Ext.P-1 detention order as well as in para 6 of the counter affidavit of the 1st respondent -State Government filed in this case (pages 5 to 7). There are no disputes regarding the factual correctness of the allegations pertaining to these 5 crimes and therefore, the details need not be reiterated. So also, there are no disputes in this case that, going by the those 5 crimes, the detenu would satisfy the definitional parameters of 'Known Rowdy' as per Sec. 2(p) (iii) read with Sec.2 (t) of the Act.
5. Sri. M.H. Hanis, learned counsel appearing for the petitioner, has raised only one ground in aid of his plea that, the impugned Ext.P-1 proceedings should be interdicted in judicial review proceedings.
6. The said contention has been strongly opposed by Sri. K.A. Anas, le
Point of Law : Court are constrained to overrule the contention of the counsel for petitioner that, live link between the last prejudicial activity and purpose of detention has been snapped in this c....
detention order will not in any manner even remotely show that the detaining authority, after consideration of the said crucial aspect has found that there are compelling reasons justifying the preve....
Even if Court concedes that necessary action for contemplating for preventive detention have been taken by sponsoring agency.
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....
If there is inordinate and unexplained delay in passing detention order, then same is liable for interdiction in judicial proceedings.
Expression “compelling reasons” in context of making an order for preventive detention of a person already in custody implies that there must be cogent materials before detaining authority.
The court established that excessive delays in preventive detention orders and in the consideration of representations violate constitutional rights, necessitating strict compliance with procedural s....
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.
Time consumed by the detaining authority for seeking additional particulars in the case on hand cannot be said to be reasonable, justifying the delay.
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