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W. P.(Crl.) No.365 of 2009. Case: Soja Beegum Vs Additional Chief Secretary to Government. High Court of Kerala (India)

Judgment Cited authorities 1 Cited in 5 Precedent Map Related
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Case NumberW. P.(Crl.) No.365 of 2009
CounselFor Appellant: M. Rajagopalan, Nair and G. Biju, Advs. and For Respondents: K.K. Ravindranath, A.D.G.P.
JudgesR. Basant and M. C. Hari Rani, JJ.
IssueKerala Anti-Social Activities (Prevention) Act (34 of 2007) - Sections 3, 6, 3(3)
Citation2009 (4) KLT 550, 2010 CriLJ 1636
Judgement DateOctober 15, 2009
CourtHigh Court of Kerala (India)

Judgment:

R. Basant, J.

  1. Does the yawning gap of time between the order of detention under S.3(3) and the execution of the same under S.4 of the of the Kerala Anti-Social Activities (Prevention) Act, 2001 (hereinafter referred to as the KAAPA) justify the prayer for invalidation of detention? This is the main question that arises for consideration in this Writ Petition.

  2. To the fundamental facts' first, The petitioner is the wife of the detenu, Murukan by name. Reckoning him as a known rowdy, Ext.P3 order of detention was passed by the District Magistrate (2nd respondent) on 31.3.2008. He was allegedly involved in three different cases, which were pending trial before two Courts. Theorder of detention was executed on 5.8.2009. Consequently the detenu continues to be under detention: Orders under S.3(3) and S.10(4)of the KAAPA have been passed/approving and confirming the detention.

  3. We have heard the learned counsel for the petitioner Sri.M. Rajagopalan Nair and Sri K.K.Ravindranath, learned Additional Director General of Prosecutions. The learned counsel for the petitioner assails the impugned order on various grounds. But, we are satisfied that it is necessary to advert only to two grounds raised by the learned counsel for the petitioner. They are:

    (1) The inordinate delay in executing the warrant must in the absence of sufficient and reasonable cause lead to invalidation of the detention.

    (2) There has been fatal delay on the part of the delegate District Magistrate in forwarding the report under S.3(3) of the KAAPA.

  4. Ground No.1: The third respondent, a superior police officer submitted a report dated 22.12.2007 to the second respondent sponsoring the detention of the detenu under S.3 of the KAAPA. On the basis of that report, Ext.P3 order of detention was passed by the second respondent on 31.3.2008. The detenu was detained on the ground that he is a known rowdy. Three cases relating to incidents which took place on 11.10.2002, 1.8.2004 and 3.4.2007 have been charge-sheeted and were pending against him before two different courts. After passing the order of detention dated 31.3.2008, the order, was not executed till 5.8.2009. According to the learned counsel for the petitioner, this gap of about 16 months between the date of the order and the execution of the order of detention affects the validity of detention. According to the learned counsel for the petitioner, there is absolutely no justifiable reasons for the delay in execution of the order of detention. It affects the alleged entertainment of the requisite satisfaction to detain the detenu and exposes the fact that there was no need at all to detain him.

  5. The learned counsel points out that preventive detention must be distinguished from punitive detention. In a case of punitive detention the person, who deserves such detention, must necessarily undergo such detention/confinement whatever be the time at which he is arrested and detained. But so far as preventive detention is concerned, it is qualitatively different from punitive detention. The law of preventive detention has been described as the jurisprudence of suspicion. Anticipation about the probable contumacious conduct, which the detenu may indulge in future, of course, on the basis of the past events, is the foundation for an order of preventive detention. Under S, 12 of the KAAPA, the maximum period of detention permissible is six months. The feundation of an order of detention under S.3 of the KAAPA is the perception of the possible contumacious conduct during the next six months from the date of passing the order. In these circumstances, the very foundation of the necessity for detention will be lost, if the authorities do not show eagerness to execute the warrant of arrest. Executing warrant of arrest beyond the period of six months is really unnecessary as the perception of the detaining authority is evidently the possibility of contumacious behaviour during six months to fallow the date of this order. The learned A.D.GP. points out and the learned counsel for the petitioner accepts that if there be an objectionable conduct on the part of the detenu to evade execution of the warrant of arrest and make himself scarce, such a detenu cannot obviously take advantage of the delay in execution. This question has come up for consideration before various courts and it is unnecessary for us to advert to the various decisions in detail. Suffice it to say, the learned counsel have drawn our attention to the following decisions of this Court and the Supreme Court.

  6. T.D. Abdul Rahman v. State of Kerala (1990 (1) KLT 440 (SC) = AIR 1990 SC 225 para. 12).

  7. K.P.M. Basheer v. State of Karnataka ((1992) 2 SCC 295 para. 11).

  8. Manju Ramesh Nahar v. Union of India (AIR 1999 SC 2622 paras. 7 and 8).

  9. R.S. & Sons Engg. Works v. S.T.Commr.U.P. (AIR 1979 SC 541 para.6).

  10. Lekha Nandakumar v. Government of India (2004 (2) KLT 1094 para.6).

  11. M. Ahamedkutty v. Union of India & Anr. ((1990) 2 SCC 1 paras. 12 and 13).

  12. Assia v. State of Kerala, (2000 (1) KLT 673 para. 6).

  13. It may not be necessary for us to advert to the relevant passages in these decisions in detail. But, there can be no difficulty in identifying the correct law. Para. 6 of the decision in Assia (supra) (2000 (1) KLT 673) perhaps contains the quintessence of law oh this aspect. That was a case of detention under the COFEPOSA Act. We extract the same.

    "6. In view of the above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining, authority to the new situation, and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. (See Bhawarlal Ganeshmalji v. State of Tamil Nadu - AIR 1979 SC 541)...

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