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2016 Supreme(Ker) 376

IN THE HIGH COURT OF KERALA
K.T. Sankaran, K.P. Jyothindranath, JJ.
Rahila Nazeer - Appellant
Vs.
State of Kerala - Respondent
W.P. (Crl.) No. 493 of 2015
Decided On : 28-01-2016

Advocates:
Advocate Appeared:
For the Appellant : Deepu Thankan, P.V. Jayalakshmy, Thomas C. Kondody, G. Ranjitha
For the Respondent: K.I. Rasheed

Headnote:

Kerala Anti Social Activities (Prevention) Act 2007 - S. 3( 1) - Anti social activity - Detention - Order of detention - Period - Extended to - held, When the maximum period for which a person can be detained is determined to be six months, delay of 4½ months in passing the detention order after the last anti-social activity can only be considered as an inordinate delay. This finding was arrived at on the basis of the fact situation in that case where the order of detention as well as the counter affidavit did not provide any explanation for the delay - Inordinate and unexplained delay would be fatal to the order of detention and whenever the period of six months from the date of last prejudicial activity is over, there can be no order of detention - If the delay is satisfactorily explained, it cannot be held that the live link is snapped - The KAAPA Act does not provide that if the period of six months from the last prejudicial activity expires, no order of detention can be passed.

JUDGMENT :

K.T. Sankaran, J.

1. The petitioner challenges in this Writ Petition the order of detention as well as the continued detention of her husband Nazeer @ Bhai Nazeer, who has been detained under Section 3(1) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the KAAPA Act'). The order of detention was issued on 17.8.2015. It was executed on 20.08.2015. The order of detention was confirmed on 08.10.2015. The detenu was classified in the order of detention as a "known rowdy". The detaining authority took into account six cases in which the detenu was involved. There was an earlier order of detention against the detenu under Section 3(1) of the KAAPA Act. That order was revoked on 24.02.2014 based on the opinion given by the Advisory Board.

2. Proceedings under Section 107 of Cr.P.C. were also initiated against the detenu on two occasions. It was alleged in the order of detention that the detenu indulged in criminal activities contrary to the terms of the bond executed by him in the proceedings under Section 107 of Cr.P.C.

3. The detenu was in judicial custody for the period from 06.01.2014 to 07.08.2015. It was alleged that even while the detenu was in judicial custody, he indulged in criminal activities and three crimes were registered against him during that period.

4. The last prejudicial activity attributed against the detenu was on 17.02.2015. In respect of the two incidents which took place on that day, crime Nos. 132 and 135 of 2015 were registered against the detenu at Panangad Police Station. It is stated that the investigation was completed in one case on 30.03.2015 and in crime No. 132 of 2015, final report was filed on 16.04.2015. The sponsoring authority submitted a report to the detaining authority on 13.08.2015, based on which, the order of detention dated 17.08.2015 was issued by the District Magistrate.

5. The learned counsel for the petitioner submitted that the order of detention was not served on the detenu when he was arrested and it is a flagrant violation of Section 7 of the KAAPA Act. It is stated that the signature of the detenu was obtained in several papers. But the order of detention was not supplied, while supplying certain other papers to him.

6. Section 7(1) of the KAAPA Act provides that when a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order.

7. The learned Additional Director General of Prosecution submitted that the order of detention was served on the detenu at the time when he was arrested. The averments in the counter affidavit filed by the respondents are also to that effect.

8. The original files were made available for our perusal by the learned Additional Director General of Prosecution which shows that the detenu acknowledged the receipt of the order of detention and made an endorsement wherein he also stated that he read and understood the same. As against the official records, there is only an averment of the wife of the detenu to the contra. We do not think that the averment made by the wife of the detenu that the detenu was not served with the order of detention can be relied on when the records show otherwise.

9. The learned counsel for the petitioner submitted that the last prejudicial activity alleged against the detenu was on 17.02.2015 and the order of detention was issued only on 17.08.2015, six months after the last prejudicial activity. The learned counsel submitted that the period for which a person can be detained under the KAAPA Act is six months and if an order of detention is passed after the expiry of six months from the date of the last prejudicial activity, it has to be taken that the live link between the prejudicial activity and the order of detention was snapped. The learned counsel relied on two decisions of this Court in Abidha Beevi v. State of Kerala, 2013 (1) KLT 286 and Jimesh Jose v. State of Kerala, (2013 (1) KLT 44







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