28 Sep 2023 12:15 PM GMT
The Kerala High Court on Wednesday declared that the State Government ought to confirm the detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA, 2007') within 3 months from the date of its execution.The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran observed that while Article 22 (4) of the Constitution does not create...
The Kerala High Court on Wednesday declared that the State Government ought to confirm the detention order issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAPA, 2007') within 3 months from the date of its execution.
The Division Bench comprising Justice Anu Sivaraman and Justice C. Jayachandran observed that while Article 22 (4) of the Constitution does not create an embargo for detention beyond the period of three months, the Apex Court had held in Ujjal Mondal v. the State of W.B (1972) that unless the power of confirmation is exercised within 3 months from the date of detention, further detention upon expiry of the said period would be without the authority of the law.
The Court added that the same position had been followed in Deb Sadhan Roy v. The State of W.B (1972), and Nirmal Kumar Khandelwal v. Union of India & Ors. (1978).
The Court made the above observations while ordering the release of a person who had been detained under the provisions of KAAPA, and in respect of whom the detention order had been confirmed only after lapse of three months and one week from date of detention.
The petitioner's son had been detained vide an order issued under the KAAPA Act 2007. The Detaining Authority had taken note of 5 instances anti-social activities that the detenu was allegedly involved in, while issuing the impugned detention order. This detention order was executed 7 days later. While the Advisory Board recommended confirmation of the detention five days subsequent to the execution of the order, it was however confirmed by the Government after more than 3 months.
Advocate Ajeesh M. Ummer, appearing on behalf of the petitioner highlighted the delay of 7 days in execution of the detention order, and added that since the detenu was already in judicial custody, there was no necessity to issue the impugned detention order, which aspect was not properly considered and weighed by the Detaining Authority, thus vitiating the impugned order.
The counsel further urged that there was an inordinate delay of more than three months in confirming the detention order by the Government, which was unexplained, and this caused serious prejudice to the detenu. The counsel relied upon the decision in Sarojini v. Union of India & Ors. (2009) to submit that an an order of confirmation under Section 10(4) of the KAAPA Act has to be passed expeditiously and that the detenu could not be kept in suspended animation as regards the fate of the order, as per which he was detained
The Government Pleader K.A. Anas argued there was no unexplained delay in executing the detention order which would cause prejudice to the detenu, who was already undergoing judicial custody. The counsel added that the final report in the crime in which the detenu was undergoing judicial custody had been filed, pursuant to which the Sponsoring Authority and the Detaining Authority apprehended that the detenu would be likely to apply for bail and get himself enlarged.
As regards the delay in confirmation of the detention order by the Government, the counsel emphasized that the same could not be done in a mechanical manner, but that the Confirming Authority would have to arrive at a satisfaction that the preventive detention order is necessary in larger public interest. It was therefore contented that, the process would take a reasonable time and having regard to the voluminous documents and facts to be considered, coupled with the inherent seriousness and importance of a detention order, the period could not be said to be inordinate.
Findings of the Court
The Court opined that delay in execution of detention order becomes significant in light of the larger public interest involved.
"...once it is found that the free roaming of an individual with high criminal propensity in the society is pernicious and a detention order passed, the continuance of that individual in the society even for a single day can be proved to be fatal and certainly against the public interest. It is in this context that the delay in execution of the detention order – such delay implying that there is no imminent necessity to shield the society from the detenu - becomes highly significant," the Bench observed.
Perusing the facts of the present case, the Court discerned that there had been no unexplained delay in the execution of the detention order, and found force in the submission made by the Government Pleader in this regard. It noted that the detenu had already been in judicial custody in connection with another crime, when the detention order was passed, and added that a pre-arrest/pre-detention delay in executing the detention order would not prejudice the detenu in any manner.
It thereby repelled the petitioner's contention that was advanced in this regard.
Relying upon the decision in Kamarunnisa v. Union of India (1991), which laid down the parameters for initiating action for preventive detention, when the detenu is in judicial custody for another crime, the Court observed that the Detaining Authority was aware of the fact that the detenu had been undergoing judicial custody in connection with the NDPS crime, which was the last one reckoned for the purpose of detention, and that he had scant regard for law and orders of the court.
"The satisfaction of the authority as regards the potential danger of the detenu roaming free in the society, especially of the probability of indulging in anti-social activity on release is quite evident, which is based on relevant and adequate materials and we cannot find any insufficiency as regards the subjective satisfaction arrived in this regard by the Detaining Authority," the Court noted while finding the second parameter in Kamarunnisa (Supra) as regards the possibility of the detenu being released on bail and the likelihood of his indulgence in subsequent prejudicial activity to be satisfied.
However, taking note that in the present case, the confirmation order was issued more than 3 months after the execution of the detention order and more than two months from the date of report of the Advisory Board, the Court was of the view that the detention order had become illegal upon the expiry of the period of three months from the date of the formal arrest, in light of Article 22(4), as interpreted in the various decisions aforementioned.
It thereby directed the release of the detenu.
Citation: 2023 LiveLaw (Ker) 520
Case Title: Malathy Ravi v. State of Kerala & Ors.
Case Number: WP(CRL.) NO.792 OF 2023
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