KAAPA | Detaining Authority Duty-Bound To Consider Previous Opinion Of Advisory Board; Non-Consideration Of Relevant Materials Fatal: Kerala HC

The Kerala High Court recently held that the previous opinion of the Advisory Board, which led to the revocation of the earlier detention order, and even the revocation of such detention order, are crucial materials which ought to be examined and considered by the detaining authority before it takes a decision for another detention under the Kerala Anti-Social Activities (Prevention) Act, 2007.The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas, observed, "...the non consideration of such relevant materials is fatal and the decision making process ... is liable to be interdicted". The court added:"It was the bounden duty of those authorities, more particularly, the detaining authority, to consider the impact and effect of the said opinion of the Advisory Board, to decide as to whether the ingredients of Section 13(2) are duly fulfilled. It is all the more necessary when the Advisory Board, in its previous opinion, has pointed out specific procedural flaws and that therefore, the parameters in clause (iii) of Section 13(2) would then be highly relevant and prominent. So, at least after such due consideration by the detaining authority, the non confidential part of the opinion of the Advisory Board, in favour of the detenu, which led to the revocation of the previous detention order, and the order of the State Government, revoking the previous detention order, should have been made available to the detenue concerned, as well as for the consideration of the detaining authority, as they are relevant and crucial".It further reiterated the settled position that the detaining authority cannot mechanically act upon either the recommendations of the sponsoring authority or on the basis of the findings and opinion of the Police Agency investigating the crime."As held by the Full Bench, the particulars furnished by the Police authorities and the sponsoring authority will have to be subjected to scrutiny by the detaining authority, so as to arrive at a finding of its own, as to the various requirements contemplated under the statute. Further, it has been conclusively held that the detaining authority cannot be a prisoner of the finding of the Police investigating agency. There has to be due, proper and independent application of mind in that regard by the detaining authority".The court made the observations in its decision on a writ of habeas corpus filed by the wife of the detenu against the detention order passed against him under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act. The detention order was passed in April in view of the involvement of the detenu in five crimes.The bench noted that prior to the issuance of the instant detention order, the respondents had issued two other orders as well, against the very same detenu. The detention order that had been issued by the Detaining Authority dated 08.02.2008 as per which the detenu was arrested and detained on the very next day itself, was however set aside by the Division Bench of the High Court vide its judgment in June 2008. The second detention order issued by the Detaining Authority in October 2020 was revoked by the Government on December 9, 2020, based on the opinion of the Advisory Board. Five main contentions had been raised before the court, and the bench delved upon each of these while deciding the case. Division Bench FindingsA. Unreasonable, unexplained delay between last prejudicial activity and date of detention order?It was contended by the counsels on behalf of the petitioner that there had been an unreasonable and unexplained delay of 3 months and 24 days between the last prejudicial activity and the date of the detention order, due to which the live and proximate link between the two had been snapped, making the detention order liable to be interfered with. The Court perused the decision in Aswathy v. State of Kerala (2015), wherein the Kerala High Court had held that the time gap between the arrest of the accused and the date of the detention order which amounted to 2 months and 16 days, was satisfactorily explained inasmuch as the detenu-accused could be arrested only subsequently, and that the delay was not fatal in such a case. Refusing the contention regarding unreasonable delay, the court said: "...the Sponsoring Authority, who is none other than the District Police Chief of the entire District, will certainly take some time to get various inputs to give their recommendations and since it is the third detention order, certainly the Detaining Authority would also require reasonable time to take a proper and prudent decision in the matter", it noted while deciding so. B. Detaining Authority held 5th Crime to be basis for triggering action Under Section 13(2)(i) without due application of mindThe Court herein perused Section 13(2) of the Act which stipulates that, "revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section...

KAAPA | Detaining Authority Duty-Bound To Consider Previous Opinion Of Advisory Board; Non-Consideration Of Relevant Materials Fatal: Kerala HC

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