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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, C.S. SUDHA, JJ.
SALIM @ KATTAKKADA SALIM S/O KASIM KUNJU – Petitioner
Versus
STATE OF KERALA – Respondent
W.P. (Crl.) No. 1088 of 2022
Decided On : 09-02-2023
Kerala Anti-Social Activities (Prevention) Act, 2007 - Section 15(1), 2(a), (p)(iii), (t), (p), 3(1) - Indian Penal Code, 1860 - Section 143, 147, 148, 341, 294(b), 323, 324, 506(ii), 427, 149 - Arms Act - Section 27 - Criminal Procedure Code, 1973 - Section 107 - Constitution of India, 1950 - Article 22, (3)(b) - Evidence Act, 1872 - Section 25 - Narcotic Drugs and Psychotropic Substances Act, 1985 - Shall not enter territorial limits of District - Known rowdy - Anti-social activities - Aggrieved by impugned order whereby petitioner shall not enter territorial limits of City Police District, for a period of 6 months from date of execution of order - Petitioner and his relatives had prevented excise officers from discharging their duties of investigation as per NDPS Act.
Findings of the Court:
When excise officers had come to house of relatives of petitioners in search of narcotic substances, petitioner and his relatives had prevented excise officers from discharging their duties of investigation as per NDPS Act - Even if it is assumed that act was done by police officers, same cannot come within scope of exclusion in terms of Clause (iii) of Section 2(p), as allegation in crime is that officers concerned were prevented from discharging their duties - Hence, in view of dictum laid down by Division Bench of this Court in Para 12 of Joicy's case supra, abovesaid contention of petitioner is not liable to be accepted - Moreover, Court note that, as per impugned Ext.P-2 order, right of entry and movement of petitioner to entire District has not been restricted and only a partial restriction has been made.
Result: Petition dismissed.
JUDGMENT :
ALEXANDER THOMAS, J.
1. The prayers in the afore captioned Writ Petition (Criminal) are as follows:
(ii) To declare that the externment order passed against the petitioner is illegal and unsustainable.
(iii) Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”
2. Heard Sri. S. Abhilash, learned counsel appearing for the petitioner and Sri. K. A. Anas, learned Public Prosecutor appearing for official respondents 1 to 5.
3. The petitioner herein is aggrieved by the impugned Ext.P-2 externment order dated 28.9.2022 issued by the Deputy Inspector General (DIG) of Police (R-2 herein), whereby, it has been ordered, under Section 15(1) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as “KAA(P)A”) that, in view of the facts and circumstances stated in the said order, it is a fit case to order that, the petitioner shall not enter the territorial limits of Kollam City Police District, for a period of 6 months from the date of execution of the said order, as otherwise, he is very likely to indulge in further prejudicial anti-social activities, as envisaged in Section 2(a) of the KAA(P)A.
4. The brief of the facts of this case is as follows:
“5. In issuing the Exhbit.P2 order following cases involved by the petitioner are considered.
(i) Crime No 849/2019 of Thekkumbhagom Police Station registered U/s 143, 147, 148, 341, 294(b), 323, 324, 506(ii), 427 r/w 149 IPC and Section 27 of Arms Act:
In this crime, the petitioner is the 1st accused. The case was registered on the FI statement of the defacto complainant, Sri. Rahul age 29. The case is that on 03.09.2019 at 20.00 hrs, petitioner and his associates unlawfully assembled, restrained the complainant and inflicted injuries with weapon, shouted and waved sword and thereby created panic and fear among the public. The enmity behind the incident was the dispute between the petitioner and complainant's friend. He obtained Anticipatory Bail from the Honourable High Court. The case was charge sheeted 02.11.2019. The case is pending for trial in JFMC Chavara as CC No. 703/2019. The next hearing date is on 11.01.2023.
(ii) Crime No. 39/2020 of Thekkumbhagom Police Station registered U/s 294(b), 323, 324, 308 and 34 IPC:
The petitioner is the 1st accused. The case was registered on the Fl statement defacto complainant Sri. Shefeek age 28. The case is that on 31.01 2020 at 22.00 hrs, the petitioner and his 2 associates assembled together and inflicted injuries to the defacto complainant and attempted to commit culpable homicide by making cut injuries with a copper. The investigation unequivocally revealed that the petitioner had committed the alleged offence. In this case also the petitioner absconded after the incident. Later, as in previous case the petitioner filed a petition for quashing the FIR in before this Honorable Court and Honorable Court in its interim order dated 24.07.2020 in Crl. M.A. No. 1/2020 in Crl. M.C. No. 1745/2020 stayed the investigation temporarily and extending the same till date. The Crl. M.C. is still pending for disposal.
(iii) Crime No. 40/2020 of Thekkumbhagom Police Station registered U/s 341, 323, 294(b) and 34 IPC:
The petitioner is the 1st accused. The case was registered on the FI statement of defacto complainant Sri. Thulasidharanpillai age 60. The case is that on 31.01.
Excise officers should be treated at par with police officers for purpose of attracting bar against admissibility of confession as in Section 25 of Evidence Act.
Sufficiency of subjective satisfaction is not amenable for judicial review.
Section 107 of Cr.PC reads as security for keeping peace in other cases.
Proceedings under Sec.107 Cr.P.C. should have been led to its logical end, requiring writ petitioner to execute a bond and maintain good behavior.
Statutory compliance is essential in preventive detention; mere allegations of delay and non-compliance with procedural safeguards do not automatically invalidate the order.
The delay in issuing an externment order does not necessarily invalidate the order if the live link for passing the order is maintained, and the authority has the power to prevent anti-social activit....
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.
Section 2(p) of Act reads as “known rowdy” means any person, who had been, by reason of acts done within previous seven years as calculated from date of order imposing any restriction or detention un....
Timely action is essential in externment proceedings to maintain a live link between the last prejudicial act and the order, ensuring the authority's satisfaction is justified.
Sec.354 of IPC, dealing with assault or criminal force to a woman with intend to outrage her modesty, etc..
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