IMPORTANT POINT
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.

JUDGMENT :

(Raja Vijayaraghavan, J.)

The petitioner is the sister of Saad Ashraf (‘detenu’ for the sake of brevity). The detenu is undergoing detention pursuant to Ext.P1 order dated 26.07.2024 issued by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP Act’ for brevity). The order was approved by the Government on 08.08.2024 and the case was referred to the Advisory Board. The Advisory Board gave its opinion on 30.09.2024 and on its basis, the detention order was confirmed by the Government on 09.10.2024. By this Writ Petition, the petitioner challenges Ext.P1 order and seeks for the issuance of a Writ of Habeas Corpus commanding the production of the body of the detenu and to set him at liberty.

Short facts:

2. The records made available before this Court reveal that the detenu was earlier detained under Section 3(1) of the KAAP Act and a detention order was passed on 26.07.2023. He underwent detention for six months from 04.08.2023 to 03.02.2024. After his release, he got involved in Crime No.35/2024 of the Excise Enforcement and Narcotic Squad, Kannur.

3. On 25.06.2024, the District Police Chief submitted a proposal seeking the initiation of proceedings. The detaining authority after arriving at the requisite satisfaction, issued Ext.P1 detention order.

4. The details of the cases in which the petitioner is involved are as under:

5. The records reveal that a rowdy history sheet was opened against the petitioner on 10.04.2019 and after that, a request for initiation of proceedings under Section 107 of the Cr.P.C. was submitted before the SDM, Thaliparambu on 17.04.2023. In the impugned order, it is mentioned that in spite of taking all measures to curb the anti-social activities, the detenu continues to be a known goonda and is involving himself in further prejudicial activities.

6. Sri. M.H. Hanis, the learned counsel appearing for the petitioner, advanced the following contentions:

a) After the earlier order of detention for his involvement in three cases, two of which were registered under the Narcotic Drugs and Psychotropic Substances Act of 1985, the petitioner got involved in only one subsequent crime. By referring to Section 13(2)(i) of the KAAP Act, it is urged that after his release, the detenu should be found to have been involved in an offence of the nature described in Section 2(o) of the KAAP Act, which defines a ‘known goonda’. According to the learned counsel, if that be the case, for arriving at the requisite objective satisfaction, Section 2(o)(i) or (ii) of the KAAP Act should again be satisfied and the mere involvement in one crime would not suffice.

b) Crime No. 35 of 2024 is registered under section 21(a) of the NDPS Act and involves a small quantity of brown sugar weighing 400 mg. According to the learned counsel, in view of the law laid down in Luciya Francis v. State of Kerala, 2023 (5) KHC 255, mere possession of a small quantity of narcotic substance cannot be construed as part of stock unless it is manifested with evidence of intention to sell.

c) There is serious non-application of mind by the detaining authority as it has been noted in the order that what was found in the possession of the detenu is 400 gm instead of 400 mg. It is urged that 400 gms amount to commercial quantity whereas 400 mg would only