IMPORTANT POINT
Preventive detention orders must comply with procedural safeguards; minor delays in communication do not invalidate detention if confirmed within three months.

JUDGMENT :

(Raja Vijayaraghavan, J.)

The petitioner herein is the wife of Shyam (“the detenu” for the sake of brevity). Proceedings under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for short ‘KAAP Act’] was initiated against the detenu and Ext.P1 order has been passed. Records reveal that the detention order was confirmed by the Government by order dated 16.08.2024 after obtaining the opinion from the Advisory Board. The petitioner had earlier approached this Court and filed a writ petition under Article 226 of the Constitution of India as WP(Crl)No.951/2024 challenging Ext.P1 order. In the said writ petition, the following contentions were raised by the petitioner.

(i) There is unexplained and inordinate delay between the last prejudicial activity attributed to the detenu and the date of passing detention order, and thus the live-link between the purpose sought to be achieved by the preventive detention and the initiation of the proceedings has been snapped.

(ii) The sufficiency of bail conditions imposed by the Sessions Court, Thiruvananthapuram while granting bail to the detenu in Crime No.270/2024, for preventing the detenu from involving in further crimes, have not been considered by the Detaining Authority in the impugned order.

(iii) The first crime reckoned by the Detaining Authority for classifying the detenu as a ‘known rowdy’ has been settled between the accused and the de facto complainant.

(iv) The second crime of murder attributed to the detenu was actually a motor accident as revealed from the claim petition filed by the legal heirs of the deceased before the Motor Accidents Claim Tribunal as O.P (MV) No.494/2023.

(v) The Detaining Authority has not considered the sufficiency of the proceedings initiated against the detenu under section 107 Cr.P.C. to prevent the detenu from involving in further anti-social activities.

(vi) The Government has not explained the reasons for the rejection of the representation submitted by the petitioner against the preventive detention of the detenu, in the communication dated 23.08.2024.

2. By Ext.P3 judgment dated 26.09.2024, this Court adverted to all the contentions raised by the petitioner and dismissed the writ petition holding that there was absolutely no reason to interfere with the said order. It is thereafter that the instant writ petition is filed on 14.10.2024 with a prayer to quash Exts.P1 and P2 and to set the detenu at liberty.

3. Sri. M.H Hanis, the learned counsel appearing for the petitioner submitted that the principle of res judicata cannot be made applicable in habeas corpus matters. He would rely on the observations made by the Apex Court in Lallubhai Jogibhai Patel v. Union of India & Ors. 1981 KHC 571, Kamal alias Kamal Deep Meena v. State & Ors. 2013 KHC 2680 and Nisha Salim v. State of Kerala & Ors., 2009(2)KHC1014 to substantiate his contentions. According to the learned counsel, this writ petition was necessitated as certain valid grounds were not raised when the earlier writ petition was filed and some of the grounds arose only after the disposal of the earlier petition. He would raise the following contentions to advance his point.

a) The detention order was issued on 26.06.2024, and in terms of the provisions of Section 3(3), the order has to be forthwith communicated to the State Police Chief and the Government. He would refer to the observations made by the Apex Court in Hetchin Haokip v. State of Manipur and Others, (2018) 9 SCC 562 to substantiate his contentions. The said requirement was not complied with in its letter and spirit.

b) For the purpose of classifying the detenu as a known rowdy, 3 crimes were considered. He points out that insofar as the 3rd crime is concerned, the same was quashed by this Court based on a settlement after the disposal of the writ petition. Then, what remains is only two crimes out of which in respect of the 1st crime, the detenu is arrayed as the 2nd accused and the only role attributed to him