IMPORTANT POINTS
Whether a person falls under Section 2(o) or 2(p), the detaining authority indeed can consider the entire criminal history including all previous criminal cases in which the person is/was involved. Such advertence to previously known facts will not vitiate the subsequent subjective satisfaction arrived at by the authority on the requirement of passing a detention order, based on crimes which the authority takes into account for that purpose.

JUDGMENT :

N. NAGARESH, J.

1. Petitioner, who is wife of the detenu Mr. Prabith S/o Sivankutty, seeks issuance of a writ of Habeas Corpus commanding respondents 3 to 5 to produce the body of the detenu who is detained in custody in Central Prison, Viyyur and to release him. The petitioner further seeks to quash Exts.P2 and P6 orders.

2. The detenu is undergoing preventive detention ordered under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA, for short). The 3rd respondent- Deputy Commissioner of Police submitted a report dated 22.09.2018 to the 2nd respondent-District Magistrate and requested for an order of preventive detention of the detenu. On receipt of Ext.P1, the 2nd respondent passed Ext.P2 order dated 06.10.2018 ordering detention. The detenu was detained on 26.10.2018. Ext.P3 grounds for detention were served on the detenu. Ext.P2 order of detention was approved by the 1st respondent on 07.11.2018 as per Ext.P4. Against Ext.P2 detention order, the detenu preferred a representation before the Advisory Board constituted under KAAPA. The Advisory Board conducted a personal hearing and recommended detention. Accordingly, the detention order was confirmed as per Ext.P6 order dated 07.01.2019.

3. The petitioner submits that the 2nd respondent has passed four detention orders earlier, against the detenu. The first of such orders passed in the year 2007 was cancelled as the 1st respondent did not confirm it. Another detention order was passed in 2013 and the detenu suffered the period of detention. Yet another order of detention was passed in the year 2016. However, the detenu was released provisionally by the order of this Court in W.P. (Crl.) No. 482/2016. Again, on 20.03.2018, another order of detention was passed. The detenu was, however, released after the hearing conducted by the Advisory Board. The detenu was acquitted by competent courts in most of the cases registered against him. The present Ext.P2 detention order was passed considering four cases which were already considered for detentions effected earlier.

4. The petitioner stated that Ext.P2 detention order is illegal, unwarranted and vitiated by legal and procedural illegalities. It is the case of the petitioner that the 3rd respondent is not competent to submit a report seeking preventive detention. The 1st respondent has not applied its mind while passing Ext.P6 order of confirmation. Had the 3rd respondent genuinely apprehended further anti-social activities by detenu, he would have submitted a report to the 2nd respondent immediately after registration of the last crime. The 2nd respondent failed to record subjective satisfaction as to how she arrived at a conclusion that detention is warranted. For all the above reasons, detention order now passed cannot stand the scrutiny of law, contended the petitioner.

5. The Public Prosecutor entered appearance and opposed the writ petition filing counter affidavits. In the counter affidavit filed on behalf of the 1st respondent, circumstances under which earlier orders of detention were passed, have been explained. The 1st respondent stated that the detenu was absconding after the last offence and surrendered before the court on 21.07.2018. However, the detenu was enlarged on bail on 14.08.2018 and hence, the authorities were forced to pass detention order on 06.10.2018. There was live link between the last prejudicial activity and the date of order of detention.

6. The 2nd respondent in his counter affidavit stated that the detenu is a known rowdy. He was involved as accused in 16 criminal cases including cases for offences under Sections 308, 307 and 302 IPC. In addition to the previous 16 cases, the detenu got involved in another criminal case soon after his release from the fourth preventive detention. The 2nd respondent has taken into consideration all relevant facts like crimes registered against the detenu, rowdy history sheet, initiation of security proceedings under Section 107 Cr.