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IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE, THE HONOURABLE MR. JUSTICE S. MANU, J.
Sindhu, W/o. Rajan – Petitioner
Versus
State Of Kerala, Represented By The Principal Secretary To Government, Home And Vigilance Department, Government Secretariat and Ors. – Respondents
WP(CRL.) No. 606 Of 2024
Decided On : 05-07-2024
DETAINING AUTHORITY - KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ACT, 2007 - Sections 3, 9, 10, 12 - The court analyzed the provisions of the KAAPA, emphasizing that the authority to fix the period of detention lies solely with the Government after receiving a report from the Advisory Board. It highlighted that any stipulation of a detention period in the initial order is contrary to the legislative intent and violates Article 22 of the Constitution, which mandates that no preventive detention can exceed three months without an Advisory Board's report. The court concluded that the detention order was invalid due to the improper delegation of authority and the stipulation of a one-year detention period.
Fact of the Case:
The petitioner challenged the detention order issued under the KAAPA for their son, who had been previously detained and was implicated in new criminal cases. The petitioner argued that the detention order was invalid due to a delay in its issuance and the District Magistrate's lack of authority to fix the detention period.
Finding of the Court:
The court found no culpable delay in issuing the detention order, as the authorities acted upon a genuine apprehension of the detenu being released on bail. However, it ruled that the District Magistrate improperly fixed the period of detention, which is solely the Government's prerogative after the Advisory Board's report.
Issues: 1. Whether the delay in issuing the detention order invalidated it due to a lack of a live link to the last prejudicial activity. 2. Whether the District Magistrate had the authority to fix the period of detention.
Ratio Decidendi: The court held that the authority to fix the period of detention under the KAAPA lies exclusively with the Government after the Advisory Board's report. Any stipulation of a detention period in the initial order is contrary to the provisions of the Act and violates Article 22 of the Constitution.
Final Decision: The court allowed the writ petition, set aside the detention order, and ordered the immediate release of the detenu if not required in other proceedings.
JUDGMENT :
(S. Manu, J.)
By Ext.P1 order dated 04.05.2024 issued by the 2nd respondent, son of the petitioner, Sri.Rahul Raj was directed to be detained under the provisions of Kerala Anti-Social Activities (Prevention)Act, 2007 (hereinafter referred to as KAAPA) for a period of one year. The detenu was earlier detained for a period of six months and was released on 27.10.2023. Thereafter, he was implicated in two more criminal cases. In the second round of proceedings, the detaining authority took note of Crime No.165/2024 of Kaipamangalam Police Station, in which the alleged occurrence was on 22.02.2024, for the purpose of passing the second order of detention. At the time of hearing, learned Counsel appearing for the petitioner raised two contentions before us. The first contention is that the last prejudicial activity happened on 22.02.2024, which led to the registration of Crime No.165/2024 of Kaipamangalam Police Station and the detenu was arrested on 22.06.2024 in connection with the same case. Ext.P1 order of detention was issued while he was undergoing judicial custody in connection with the said crime. The learned Counsel submitted that though the detenu was in judicial custody, and materials relied on by the detaining authority were available with the sponsoring authority, there is a delay of more than two months in passing the detention order from the date of last prejudicial activity. Therefore, he argued that the live link essential for sustaining the detention order was snapped in this case and hence the detention is invalid. Learned Government Pleader Shri K.A.Anas pointed out that the detenu was arrested in connection with the crime registered on 26.02.2024 and he continued in judicial custody. The sponsoring authority submitted proposal for detention when it was felt that there is imminent possibility of the detenu being released on bail and again indulging in prejudicial activities. After gathering the materials to be placed before the detaining authority, the proposal was submitted without any unreasonable delay and order of detention was thereafter issued by the detaining authority.
2. In view of the explanation offered by the learned Government Pleader for the time taken in the matter, we are satisfied that there is no culpable delay involved in issuing the detention order in this case. It is to be noted that the detenu was arrested on 26.2.2024 and even if he does not move any application for regular bail, chance of he being released on statutory bail was also there and it is only reasonable on the part of the sponsoring authority to move for obtaining an order of preventive detention, when the sponsoring authority had genuine apprehension of the detenu being released from judicial custody. So also, during the initial period of judicial custody, if the likelihood of bail being granted is remote, there is no reason for the authorities to apprehend that the detenu will involve in activities affecting public tranquillity as he is already in prison. Hence the authorities cannot be found to have faulted if they had not acted till there arose genuine apprehension of the detenu being set free from judicial custody and involving in activities adversely affecting public order. In such situations it cannot be said that the live link has been snapped only because there is a gap of time amid the last prejudicial activity and the issuance of the detention order. Hence, we reject the contention regarding delay, raised by the learned Counsel for the petitioner.
3. The second contention raised is regarding the stipulation of the period of detention as one year in Ext.P1 order issued by the 2nd respondent, District Magistrate. Learned Counsel for the petitioner submitted that the 2nd respondent District Magistrate is not competent to fix the period of detention. The absolute authority to fix the period of detention is vested with the Government. Hence, he contended that Ext.P1 order is liable to be set aside. He relied on
The power to fix the period of preventive detention under the KAAPA is exclusively vested in the Government after receiving the Advisory Board's report, and any initial stipulation of a detention per....
The power to fix the period of preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007, is exclusively vested in the Government after the Advisory Board's recommendation, ....
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.
The court confirmed that under amended KAAPA provisions, the detention of individuals for a year is permissible upon engaging in further anti-social activities post-release.
Once a confirmatory order of detention is passed under Section 12(1) of the National Security Act, the State Government has no authority to review or extend the order. The detention becomes illegal a....
Point of Law : Court cannot hold that a pre-arrest/pre-detention delay in executing detention order will prejudice detenu in any manner.
Statutory compliance is essential in preventive detention; mere allegations of delay and non-compliance with procedural safeguards do not automatically invalidate the order.
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