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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, G. GIRISH, JJ.
Kiran Ronald, S/o. Ronald – Appellant
Versus
State Of Kerala – Respondent
WP(Crl.) No.755 of 2023
Decided on : 04-12-2023
Detention order - violation of KAAPA - Section 3(2) - Section 2(j), 2(o), 2(p), 2(t), 3, 9, 10, 12, 13 - The court discussed the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, including the definitions of 'goonda', 'known goonda', 'known rowdy', 'rowdy', the power to make detention orders, reference to the Advisory Board, procedure of the Advisory Board, maximum period of detention, and revocation of detention order. The court also referred to previous judgments to establish the legal framework for preventive detention under the KAAPA.
Fact of the Case:
The petitioner sought to quash a detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007, alleging violation of legal provisions and fundamental rights. The detenu, a known rowdy, was involved in multiple criminal cases and was released on bail before being detained again.
Finding of the Court:
The court found that the detention order was issued in accordance with the provisions of the KAAPA and the Constitution, and that there was a live link between the detenu's criminal activities and the need for preventive detention. The court also rejected the argument of inordinate delay in issuing the detention order.
Issues: Violation of legal provisions and fundamental rights, inordinate delay in issuing the detention order.
Ratio Decidendi: The court held that the detention order was valid and in compliance with the legal framework provided by the KAAPA. The court also established that the live link between the detenu's criminal activities and the need for preventive detention was maintained, rejecting the argument of inordinate delay.
Final Decision: The writ petition challenging the detention order was dismissed by the court.
JUDGMENT :
Anil K. Narendran, J.
The petitioner has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P1 detention order dated 03.04.2023 issued by the 2nd respondent District Magistrate, Kollam under Section 3(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007, for brevity, ‘the KAAPA’, and Ext.P5 order dated 05.07.2023 of the 1st respondent State, whereby Ext.P1 detention order stands confirmed. The petitioner has also sought for a writ of Habeas Corpus commanding the respondents to produce the detenu ‘Shanu’ before this Court and set him at liberty forthwith.
2. The petitioner is the cousin brother of the detenu ‘Shanu’. In the writ petition, it is alleged that the arrest and detention of the detenu is in violation of all the provisions and procedures established by law, his fundamental rights guaranteed under the provisions of the Constitution of India, the provisions of the KAAPA and the direction issued by the Apex Court in the decision reported in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416]. It is also alleged that while issuing Ext.P1 detention order, the cases which were already considered for issuing the previous detention order were again considered.
3. The 4th respondent Station House Officer, Pallithottam Police Station submitted Ext.P3 report dated 20.01.2023 before the 3rd respondent City Police Commissioner (Superintendent of Police), Kollam, the Sponsoring Authority, pointing out the need for detaining the detenu under the provisions of KAAPA, based on which the Sponsoring Authority submitted Ext.P2 report dated 28.01.2023 before the 2nd respondent District Magistrate. As required by the 2nd respondent, the Sponsoring Authority submitted the additional documents along with Ext.P4 report dated 15.03.2023. In the writ petition, it is alleged that there is no live link from the last prejudicial activity to the date of the detention order, since there occurred an inordinate delay of three months and eight days. Initially, the detenu was detained under Section 3(1) of the KAAPA for a period of 6 months from 13.06.2022. After release, the detenu was implicated in Crime No.791 of 2022 of Pallithottam Police Station as the 3rd accused, alleging offences punishable under Sections 323, 324 and 308, read with Section 34 of the Indian Penal Code, 1860. All the accused in the said crime, including the detenu, got bail by the order dated 30.01.2023 of the Judicial First Class Magistrate Court-III, Kollam in C.M.P.No.96 of 2023, subject to the conditions stipulated therein. A copy of the bail order dated 30.01.2023 was submitted before the District Magistrate, as an additional document, along with Ext.P4 report dated 15.03.2023 of the Sponsoring Authority. Based on Ext.P1 detention order dated 03.04.2023, the detenu was again arrested on 04.04.2023. The 1st respondent State, by Ext.P5 order dated 05.07.2023, confirmed Ext.P1 detention order, after considering the report of the Advisory Board under the KAAPA and the representation submitted by the detenu.
4. On 01.08.2023, when this writ petition came up for admission, the learned Government Pleader was directed to get instructions.
5. The 2nd respondent District Magistrate has filed a counter affidavit dated 13.10.2023, opposing the reliefs sought for in this writ petition.
6. Heard the learned counsel for the petitioner and the learned Government Pleader for the respondents.
7. The issue that requires consideration in the writ petition is as to whether any interference is warranted on Ext.P1 detention order issued by the 2nd respondent District Magistrate, which stands confirmed by Ext.P5 order of the 1st respondent State.
8. The learned counsel for the petitioner contended that the arrest and detention of the detenu vide Ext.P1 detention order issued under Section 3(1) of the KAAPA is in violation of the provisions contained in the said Act and his fundamental rights guaranteed under the provision
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....
Statutory compliance is essential in preventive detention; mere allegations of delay and non-compliance with procedural safeguards do not automatically invalidate the order.
Detenu will satisfy definitional parameters of “known goonda” as per Section 2(o) read with Section 2(j) of Act.
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.
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 upheld the detention order under the KAAP Act, affirming that prior classification as a 'known rowdy' and subsequent criminal activity justified continued detention.
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....
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.
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.
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