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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
Afsal L.S. S/o Latheef – Petitioner
Versus
State of Kerala – Respondent
W.P. (Crl.) No. 1038 of 2022
Decided On : 19-12-2022
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 3(1), 2(a), 7(2), 9, (1), 10(1), 2(p)(iii) - Criminal Procedure Code, 1973 - Section 107, 482 - Habeas Corpus - Seeking for issuance of writs of certiorari and Habeas Corpus in relation to impugned order of preventively detaining detenu - Order of preventive detention can be validly passed against a person who is already in judicial custody and for that purpose, it is necessary that detaining authority was aware of fact that detenu is already in detention.
Findings of the Court:
Detaining authority has taken view that though, detenu was then continuing in judicial remand, it is very likely for him to secure bail in that case and that if he is released on bail, then he would be a menace and threat for peace loving people, in view of his proclivity to commit such prejudicial activities - Hence, Court is of view that necessary parameters, for ordering preventive detention of a detenu, who is already in judicial custody, has been satisfied in this case - Sufficiency or otherwise of subjective satisfaction in that regard is not justiciable in judicial review - Hence, Court is constrained to overrule 3rd contention of petitioner as well - Hence, Court is of view that necessary parameters, for ordering preventive detention of a detenu, who is already in judicial custody, has been satisfied in this case - Sufficiency or otherwise of subjective satisfaction in that regard is not justiciable in judicial review - Hence, Court is constrained to overrule 3rd contention of petitioner as well - Court is constrained to overrule last contention of petitioner as well - In other words, petitioner has not made out any successful grounds in judicial review in this case.
Result: Petition dismissed.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The prayers in the afore captioned Writ Petition (Criminal) seeking for issuance of writs of certiorari and Habeas Corpus in relation to the impugned order of preventively detaining the detenu under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 are as follows:
(ii) Issue a writ of certiorari or any other writ, order or direction quashing Exhibits P3 and P5 orders.
(iii) And grant such other and further relief, as this Hon’ble Court may deem fit and proper in the interest of justice.
(iv) dispense with the filing of the translation of vernacular documents.”
2. Heard Sri. Nireesh Mathew, learned counsel appearing for the petitioner and Sri. K.A. Anas, learned Prosecutor appearing for the respondents.
3. The brief facts necessary for the disposal of this case are as follows.
4. The petitioner herein is the brother of the detenu. That the 3rd respondent District Police Chief (Sponsoring Authority) had submitted initial report dated 05.04.2022 and a subsequent report dated 16.05.2022, recommending to the 2nd respondent (detaining authority) that, in view of the factual aspects stated therein, it is a fit case to enable the 2nd respondent to pass order under Section 3(1) of the KAAPA, so as to preventively detain the detenu concerned, as otherwise he is likely to indulge in further prejudicial activities, as envisaged in Section 2(a) of the Act. Thereupon, the 2nd respondent has passed the impugned Ext.P3 detention order dated 18.06.2022 under Section 3(1) of the Act, whereby it has been ordered that, in view of the factual aspects stated therein, the 2nd respondent is satisfied that the said order dated 18.06.2022 should be issued, with a view to prevent the detenu from committing further anti-social activities. It is the case of the respondents that copy of Ext.P3 detention order, alongwith all the relevant records, were forthwith transmitted to the 1st respondent State Government. Ext.P3 detention order was executed on 02.07.2022. Ext.P3 was approved by the 1st respondent State Government on 14.07.2022. Thereafter, the 1st respondent State Government has forwarded the matter for the considered opinion of the Advisory Board, under Section 9 of the Act. The Advisory Board has thereafter considered the matter and has given report to the 1st respondent State Government on 26.08.2022 stating that, in view of the aspects stated therein, there is sufficient cause for the preventive detention of the detenu. Later, the 1st respondent State Government has issued Ext.P5 order dated 30.08.2022, confirming Ext.P3 detention order. There is no dispute that the various statutory timelines in the Act as in Section 3(3) for forthwith communicating the detention order with records to the State Government, the 5 days time limit in Section 7(2) for communicating grounds of detention to the detenu, 12 days time limit under Section 3(3) for approval of the detention order by the State Government after excluding public holidays, 3 weeks time limit under Section 9(1) for placing the matter before the Advisory Board from the date of detention, 9 weeks time limit under Section 10(1) for submission of Advisory Board’s report etc have been followed in this case. 7 crimes have been reckoned by the 2nd respondent detaining authority in the issuance of Ext.P3 detention order. The details of the said 7 crimes are given in Ext.P3 detention order as well as in paragraph 6 on pages 5 to 8 of the counter affidavit dated 08.12.2022, filed by the 1st respondent State Government in this case. There are no factual disputes regarding the allegations in those 7 crimes, so there is no necessity to reiterate the same. So also, there is no dispute that, going by the det
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....
Law is well settled that legal parameters should be fulfilled by detaining authority to justify a case of preventive detention, where an accused is already under judicial remand in a crime.
Detenu will satisfy definitional parameters of “known goonda” as per Section 2(o) read with Section 2(j) of Act.
Preventive detention is valid even if the detenu is in judicial custody if the authority proves likelihood of bail and potential criminal activity upon release.
Point of Law : Order should be passed under Section 3(1) to preventively detain detenu as he is likely to commit further prejudicial anti-social activities.
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.
Point of Law : Detenue is already in custody in some other case, at time when the preventive detention order was passed, and should also satisfy the other parameter
A detention order can be validly passed under preventive detention even if the individual is in judicial custody, contingent on established criteria of likely bail release and previous criminal histo....
Detention under preventive laws can validly occur even if the individual is in judicial custody, provided there is proper justification.
Detention orders under preventive detention laws can be validly issued against individuals in judicial custody, provided there is a reasonable belief of imminent bail and likelihood of prejudicial ac....
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