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2023 Supreme(Online)(KER) 24116
HIGH COURT OF KERALA
P. B. Suresh Kumar, C.S. Sudha, JJ
SILPA MOL – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.) 27 2023
S.MOHAMMED AL RAFI, V.S.MANSOOR, AKHIL BINOY, THAJUNA MARIA FRANCIS, ADVOCATE GENERAL OFFICE KERALA, ADDL.DIRECTOR GENERAL OF PROSECUTION, ADDL. STATE PUBLIC PROSECUTOR
A preventive detention order under KAAPA is valid if approved within the statutory period, even if the individual is in custody, provided the authority appropriately assesses the risk of release and further criminal conduct.
Headnote:
Detention - Preventive Detention Law - Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) - Sections 3(1), 3(3), 10(4), 13(2)(i) - The court upheld the validity of a detention order under KAAPA, highlighting key provisions regarding the conditions for preventive detention and the necessity for timely government approval.
Fact of the Case:
A detention order issued against a person under the Kerala Anti-Social Activities (Prevention) Act was challenged in court on the grounds of procedural non-compliance and alleged non-application of mind by the authorities. The detention order was claimed to be invalid due to delayed governmental approval on the detention.
Issues: Whether the detention order was valid given the timing of governmental approvals and the detenu's judicial custody, alongside questions of the detaining authority's subjective satisfaction.
Ratio Decidendi: The court held that the detaining authority's subjective satisfaction regarding the detenu's potential release and subsequent criminal activity justified the detention under KAAPA, emphasizing the importance of both objective and subjective assessments in preventive detention.
Final Decision: The writ petition was dismissed, upholding the detention order.
J U D G M E N T
C.S.Sudha, J.
Ext.P7 detention order dated 02/09/2022 issued under Section
3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) by the second respondent (R2) against the detenu, the husband of the petitioner, is under challenge in this writ petition. Ext.P7 detention order has been confirmed under Section 10(4) KAAPA by the first respondent (R1) by Ext.P13 order dated 14/11/2022.
2. Heard Sri.S.Mohammad Al Rafi, the learned counsel for the petitioner and Sri.K.A.Anas, the learned Government Pleader for the respondent.
3. Following are the grounds on which Ext.P7 order is challenged-(i) non compliance of Section 3(3) of KAAPA. (ii) non application of mind by the detaining authority and (iii) the detenu does not fall within the contours of Section 13(2)(i) of KAAPA.
4. Section 3(3) says that when any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. Therefore, the approval of the order by the Government must be within 12 days (which is excluding holidays) from the date of detention. When Ext.P7 order dated 02/09/2022 was issued, the detenu was in judicial custody in another crime. Ext.P10 memo for executing the order of detention and Ext.P11 jail admission authorisation were issued by R2 on 02/09/2022. On the same day itself the detenu was detained. The said detention was not approved within 12 days from the date of detention as mandated under Section 3(3) of the Act. On the other hand Ext.P9 order of approval was issued by the Government only on 24/09/2022, which is beyond the period of 12 days. Hence Ext.P7 order is bad for non compliance of Section 3(3) of KAAPA, alleges the petitioner.
5. Per contra it was submitted by the learned GP that the detenu was not detained on 02/09/2022 as alleged by the petitioner, but on 07/09/2022. In the counter affidavit filed on behalf of R1 it is contended that, as the detenu was in judicial custody, permission had to be sought from the court concerned under whose order he was in judicial custody to execute Ext.P7 order. The request was given to the Court of Session, Alappuzha and the said request was allowed by the learned Additional Sessions Judge-I as per order dated 05/09/2022. Pursuant to the said order, the detenu was arrested only on 07/09/2022. Hence Ext.P9 order dated
24/09/2022 is well within the period of 12 days, contend the respondents.
6. During the course of arguments, the learned GP handed over to us the original file relating to the case for perusal. On verification, we find that Ext.P7 order was executed on 07/09/2022. Therefore, the period of 12 days excluding holidays as contemplated under Section 3(3) has to be calculated from the date of detention. Seven days holidays intervened, which are, 07/09/2022, 08/09/2022, 09/09/2022, 10/09/2022 and 21/09/2022. 11/09/2022 and 18/09/2022 were Sundays. Therefore, if these seven days are excluded, it can be seen that the approval of Ext.P7 order by Ext.P9 order on 24/09/2022 is on the 12th day and therefore within the period of 12 days contemplated in Section 3(3) of the KAAPA. That being the position, the first ground of challenge will have to fail.
7. According to the petitioner, the last prejudicial activity alleged to have been committed on 14/06/2022 by the detenu is Crime 396/2022, Mannancheri Police Station, alleging commission of the offences punishable under Sections 20(b)(ii)(B); 22(c); 29 of the NDPS Act and Section 27 of the Arms Act. When commercial
