KAAPA | Unreasonable Delay By Detaining Authority In Seeking 'Additional Particulars' Vitiates Preventive Detention Order: Kerala High Court

The Kerala High Court on Monday quashed the detention order of a person who had been detained under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred, 'KAAPA, 2007') on the ground of unreasonable delay on the part of the detaining authority in seeking additional particulars from the sponsoring authority. 

The Division Bench comprising Justice P.B. Suresh Kumar and Justice C.S. Sudha observed, 

"No doubt, the procedural requirements under the Statute need to be complied with before issuing an order of detention and the reasonable time required for the same cannot be a reason to contend that the live and proximate link between the prejudicial activities and the purpose of detention is snapped. But, if the time consumed for complying with the procedural requirements is unreasonable, according to us, the same is a matter that would affect the validity of the order, for if the said delay is held to be a delay not affecting the validity of the order, it would appear that if additional particulars are required by the detaining authority for due application of mind as to the need to detain the person concerned, the detention order can be passed at any time. It is all the more so since the detaining authority is obliged under law to adopt procedures to expedite the consideration of the matter, for the administrative delay is no answer to a demand for liberty". 

It was alleged that petitioner's son is a 'known rowdy' and is required to be detained in order to prevent him from committing further anti-social activities. The detention order alleged that the detenu had indulged in various prejudicial activities, the last such incident having occurred on July 30, 2022. The detenu was arrested in the case the next day and released on bail on August 24, 2022. The detention order was issued on the recommendation of the sponsoring authority on January 7, 2023 and the detention was confirmed by the Government on March 2, 2023 for a period of six months from the date of detention.

Arguments Raised by the Petitioner

Advocate M.H. Hanis appearing on behalf of the petitioner contended that there was unreasonable and unexplained delay of 4 months and 14 days between the date of release of the detenu on bail, and the date of the detention order, thereby casting considerable doubt on the genuineness of the subjective satisfaction rendered by the detaining authority as to the live and proximate link between the prejudicial activities and the purpose of detention.

It was argued by the counsel that the detenu is entitled to be furnished the grounds of detention, specifying the instances of offences, with copies of the relevant documents, on the basis of which he is considered as a 'known rowdy' and also the materials relating to his activities, on the basis of which his detention has been found necessary as per Section 7(2) of KAAPA, 2007, so as to enable him to exercise his right to represent to the Government and before the Advisory Board against the detention.

It was alleged that the compilation of documents served on the detenu were not legible due to which he was deprived of his right to prefer effective representations as guaranteed under Article 22(5) of the Constitution. 

Lastly, it was submitted that there was non-compliance of the mandatory procedural requirement provided for under Section 3(3) of KAAPA, inasmuch as the detaining authority had not reported the detention order to the Government and the Director General of Police, Kerala with the supporting documents. 

Arguments Raised by the Respondents

The Government Pleader K.A. Anas argued that additional particulars were required for the detaining authority to ensure that there exists a live and proximate link between the prejudicial activities in which the detenu had indulged in and the purpose of detention, and that the delay was occasioned only due to the time taken in obtaining the said particulars, which thus could not be regarded as delay vitiating the order. It was further submitted that the detenu's representations were considered by the Government and the Advisory Board, prior to the confirmation of the detention order. It was argued that the mandate under Section 3(3) of KAAPA had also been complied with in the present case. 

Findings of the Court

The Court in this case noted that the copy of the detention order and all supporting documents were forwarded by the detaining authority to the State Government and the State Police Chief on the date of the order and rejected the argument raised by the petitioner on that ground. The Court added that if the detenu had no grievance either before the State Government or the Advisory Board that the right guaranteed to him under Article 22(5) of the Constitution of India had been infringed on account of the illegibility of the documents furnished to him, that ground raised by the petitioner now would have to be rejected.

It was also found that the representation submitted by the detenu before the Advisory Board had been considered and on receipt of opinion of the Advisory Board, the State Government considered the same and that it was only thereafter that the confirmation order was issued on March 2, 2023. 

The Court was thereafter faced with the question as to whether the detention order is vitiated for the reason that the live and proximate link between the prejudicial activities of the detenu and the purpose of detention had snapped due to the delay in issuing the detention order.

"There cannot be any doubt that there has to be a live and proximate link between the prejudicial activities of the detenu and the purpose of detention, for otherwise, the purpose of detention will not be served and the order of detention would result in infringement of the fundamental rights guaranteed to the detenu under Articles 21 and 22 of the Constitution. There cannot also be any doubt that the unreasonable delay between the prejudicial activities of the detenu and the purpose of detention would create a serious doubt as to the genuineness of the subjective satisfaction rendered by the detaining authority as to the live and proximate link," the Court noted. 

The Court noted that the detention order was passed 5 months and 9 days after the last prejudicial activity in which the detenu indulged in took place. The Court was of the opinion that the question as to whether the said delay would cast doubt on the genuineness of the subjective satisfaction of the detaining authority on the aspect of the live and proximate link, in order to justify an interference would have to be decided as per the facts of the case. 

The Court on taking note of the factual circumstances of the case was of the considered opinion that the time consumed by the detaining authority for seeking additional particulars in the case could not be said to be reasonable, thereby justifying the delay. 

Accordingly, the impugned detention order was quashed. The Court directed the detenu to forthwith be released from the Central Prison, Viyur, if his detention was not otherwise required. 

Case Title: Ambika B. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 303

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