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S.V. Anupama & Another v/s State Of Kerala Represented By The Additional Chief Secretary to Government, Thiruvananthapuram & Others

    Writ Petition (Crl.) Nos. 516 & 531 Of 2022

    Decided On, 14 July 2022

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE K. VINOD CHANDRAN & THE HONOURABLE MR. JUSTICE C. JAYACHANDRAN

    For the Appearing Parties : M.H. Hanis, Advocate, K.A. Anas, Government Pleader.



Judgment Text

K. Vinod Chandran, J.

1. The identical petitioner seeks release of her husband and his brother, in the respective writ petitions, from preventive detention. The detenues have been detained under separate orders by reason of the criminal activities indulged in by them. We dispose of the writ petitions by this common judgment, since the contentions raised against the detention order are almost identical.

2. Sri.Hanis M.H., learned Counsel appearing in W.P.(Crl.) No.516 of 2022 is concerned with the detention of the petitioner's husband, who was taken into custody on 23.02.2022. It is argued that there are no documents to evidence compliance of sub-section (2) of S.7 of the Kerala Anti-social Activities (Prevention) Act [for brevity, 'KAA(P)A']. The contention is that there is no information in writing, under acknowledgment, of the right to represent to the Government and before the Advisory Board against the detention. The last prejudicial activity was on 20.10.2021 and there is a delay of more than four months in passing the detention order. It is further argued that the detention order, immediately on its making, was not supplied to the Government, which as per S.3(3) has to be done 'forthwith'. The final order was passed on 15.05.2022 with gross delay. There is no final report filed in the last crime alleged against the detenue and hence it cannot be said that there is any finding in an investigation or enquiry by a competent Police Officer to bring him under S.2(p)(iii) of the KAA(P)A. The Detaining Authority has not applied its mind or considered Ext.P3 bail order; the conditions in which have been scrupulously complied with by the detenue. It is alleged that there is no supply of legible copies of the documents relating to the last crime, nor has the proceedings under S.107 Cr.P.C, initiated against the detenue, communicated to the Detaining Authority.

3. Sri.C.Rajendaran, learned Counsel appearing in W.P.(Crl.) No.531/2022 is concerned with the preventive detention of the brother-in-law of the petitioner. The two grounds raised against the subject detention are also with respect to there being no 'forthwith' transmission of the order of detention to the Government and the S.107 proceedings under the Cr.P.C having not been considered.

4. Sri.Anas, the learned Government Pleader appearing for State seeks to sustain both the orders passed by the Detaining Authority. The learned Government Pleader points out that both the detenues are habitual criminals and they fall under the definition of 'known rowdy' under the KAA(P)A. With respect to the contention regarding non-filing of final report, reliance is placed on a Full Bench decision in Stenny Aleyamma Saju v. State of Kerala [2017 (3) KHC 517]. It is submitted that though the last prejudicial act was on 21.10.2021, the accused was arrested on 24.10.2021. The accused remained in judicial custody till he was granted bail on 19.11.2021. The delay, according to the learned Government Pleader, has been explained in the impugned order itself, which is by reason of the additional report called for by the Detaining Authority. As for the information supplied in writing, the file was produced before us, which clearly indicates the written communication of the Prison Official, which has been acknowledged by the detenue. It is pointed out that the Government received the report of the Advisory Board on 22.04.2022 and the final order was passed on 15.05.2022 without any delay. As far as the forthwith communication mandated under S.3(3), reliance is placed on a Division Bnch decision of this Court reported on Arifa Beevi v. State of Kerala 2009 (3) KLT 155 and a judgment of the Hon'bnle Supreme Court reported in Hetchin Haokip v. State of Manipur [(2018) 9 SCC 562].

5. In the first of the above two cases, wherein the petitioner is concerned with her husband, the detention order, Ext.P1, is dated 21.02.2022 and the detention was effected on 23.02.2022. The last prejudicial activity as seen from the order is on 20.10.2021 regarding Crime No.1197 of 2021 of Kunnikkode Police Station. Admittedly, at the time of passing of detention order or when the Sponsoring Authority recommended detention, there was no final report filed in the said case. We have our own doubts regarding the Full Bench decision in Stenny Aleyamma Saju [supra]; but the binding precedent of a Full Bench would not be lessened, till a reconsideration is occasioned by a Larger Bench. We are bound to follow the same and a reference would not be necessary if the detention is vitiated otherwise. We would consider the issue last.

6. The next contention is with respect to the delay that was occasioned in passing the order of detention from the last prejudicial activity, thus breaking the live-link. We have looked at the specific paragraph in Ext.P1, which speaks of the recommendation of 31.12.2021 having been scrutinized with the attendant documents and more details and documents having been sought for, from the Sponsoring Authority. The same was received on 08.02.2022 and it is specifically mentioned that the SHO, Kunnikkode had taken some time in collecting the documents from the various Police Stations, especially due to the pandemic situation. The Sponsoring Authority had specifically spoken of the delay and explained it, which explanation was found to be satisfactory by the Detaining Authority. We find the delay occasioned to be properly explained.

7. Though an allegation was raised with respect to legible copies not being supplied, none of such illegible copies have been produced in the writ petition nor has any S.107 proceedings specifically referred to by the petitioner in the Memorandum of Writ Petition. In W.P.(Crl.) 531 of 2022, considering the gravity of offences and the number of the crimes, the Detaining Authority has specifically noticed that S.107 proceedings will not be sufficient to restrain the detenue from committing further criminal activities. Eight crimes have been mentioned and despite stringent bail conditions, the detenue has continued his criminal activities.

8. Now we come to the common contention raised on behalf of both the detenues of there being no forthwith communication of the detention order. The learned Government Pleader had relied on Arifa Beevi [supra] a Bench decision of this Court, wherein it was held that there can be no prescription of the particular number of days within which the order should be communicated to the Government; which could be crucial or vital in understanding the expression 'forthwith' under S.3 of the KAA(P)A. It was held that the purpose is obvious and that 'after receipt of the report by the Government, the order regarding approval under S.3(3) has to be passed within 12 days from the date of detention' (sic). When the approval order is passed within 12 days from the date of detention, it was held, the mandate of the provision is complied with, in letter and spirit. Then there can be no contention taken regarding delay, in submission of the report under S.3(3), having vitiated the detention order itself. We are unable to agree with the same proposition and we would have normally referred the issue to a larger Bench; but for the decision of the Hon'ble Supreme Court in Hetchin Haokip [supra]

9. Hetchin Haokip [supra]was a decision later to Arifa Beevi [supra], where the provisions under the National Security Act 1980 [for brevity the 'NSA'] came up for consideration. In considering S.3(4) of the NSA, which is in pari materia with S.3(3) of KAA(P)A it was held that S.3(4) has to be understood in relation to the scheme of the Act and not in isolation. Section 3 (4) of the NSA requires the Detention Order made by an authorised officer to be communicated forthwith to the Government, along with grounds of detention and any other relevant facts. It is also provided that no such order shall remain in force unless, within twelve days of detention, the Government approves the same. The NSA had a proviso; not available in KAA(P)A, which extended the twelve days to fifteen, if under Section 8 the grounds of detention are supplied to the detenue, after five days, but within ten days from the date of detention. Section 8 required the grounds of detention to be supplied, as soon as may be, within five days from the date of detention, in ordinary circumstances and within ten days, under exceptional circumstances, with reasons for the delay recorded in writing. Comparing S.3(4) with S.8, the High Court reasoned that, the purpose of sending the report to the State Government is to enable the State Government to decide whether or not to approve the order of detention, within twelve days of detention; failing which the order will lapse anyway. Finding that, the requirement under S.8 stands on a higher pedestal, S.3(4) was interpreted in isolation, to find that when the grounds of detention need to be communicated to the detenue only within five days, it would not have been contemplated that the report with the grounds, ought to be send to the State Government, immediately or instantaneously. The rationale, was that supply of grounds of detention to the detenue was sacrosanct, as a right guaranteed under Article 22(5); while the supply of the order to the Government was only to enable the approval within 12 days of detention. If within 12 days the approval is granted, then there would be no prejudice caused by delay in sending the order to the Government, was the reasoning as the Division Bench of this Court too reasoned in Arifa Beevi [supra].

10. The Hon'ble Supreme Court relied on Keshav Nilkanth Joglekar v. The Commissioner Of Police [AIR 1957 SC 28], to deprecate the reasoning of the High Court. Therein the meaning of 'forthwith' was clearly stated to be different from 'as soon as may be'. What was contemplated by the latter, was only 'what is reasonably convenient' while under S.3(3) of the Preventive Detention Act 1950, only that period of time is allowed, where the Authority could not, without its own fault, send the report. The following test was laid down in paragraphs 15 & 16 of Hetchin Haokip (supra), extracted here under:

”14. The High Court is not correct in holding that as long as the report to the State Government is furnished within twelve days of detention, it will not prejudice the detenu. It is settled law that a statute providing for preventive detention has to be construed strictly. While “forthwith” may be interpreted to mean within reasonable time and without undue delay, it certainly should not be laid down as a principle of law that as long as the report to the State Government is furnished within 12 days of detention, it will not prejudice the detenu. Under Section 3(4), the State Government is required to give its approval to an order of detention within twelve, or as the case may be, fifteen days.

15. The expression “forthwith” under Section 3(4), must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative laxity.”

In Hetchin Haokip (supra) there was a delay of five days in sending the detention order to the Government, which was not mentioned or explained in the final order of the State Government. There being no satisfactory explanation, the order was said to be vitiated.

11. In WP(Crl) No.516 of 2022 the order was dated 21.02.2022; an e-mail with attachment is said to have been sent on 25.02.2022 after four days and the physical file sent on 26.02.2022. The learned Government Pleader on instructions, submitted that the files were entrusted for transmission to the State Government on 21.02.2022. Mere entrustment, for the purpose of transmission, would not be due compliance of the mandate under S.3(3), since it is incumbent upon the Detaining Authority to send forthwith, the order of detention, on its making; which should necessarily find its way to the Government forthwith, failing which there is no due compliance. We also have to notice that despite the order of the Advisory Board dated 18.04.2022 having been received by the Government, the same was not acted upon immediately. The order is said to have been received on 22.04.2022 and more than 20 days were taken to confirm the same, which is grossly delayed. We find no reason to refer the issue of the absence of a Final Report, since the impugned order is otherwise vitiated. We reject the contention regarding the last crime, not being sufficient for consideration under S.2(p) of the KAA(P)A for reason of a final report having not been filed before the impugned order was passed, relying on Stenny Aleyamma Saju [supra].

12. The learned G.P attempted to distinguish Hetchin Haokip (supra) on the ground that the NSA prescribes forthwith report, with the grounds on which the order is made together with such other relevant particulars, whereas KAA(P)A does not have that prescription. We immediately reject the contention as misplaced and factually unsustainable. Section 3 (3) of KAA(P)A requires forthwith report, together with copy of the order and supporting records, having a bearing in the matter. In essence both the enactments require the

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very same report, which should contain the grounds and every material substantiating the grounds; which also is a Writ Petition (Crl.) Nos.516 & 531 of 2022 15 sacrosanct right, since the Government under section 13 is clothed with the power to revoke the order at any time; even immediate to the making of the order and before a detention is effected. 13. As far as WP(Crl.) No.531 of 2022 is concerned, the detention order dated 05.02.2022 was communicated after five days on 10.02.2022, which vitiates the said order too. 14. Having considered the various grounds raised by the petitioner in W.P.(Crl)No.516 of 2022, who is the wife of the detenue, we are of the opinion that there is no compliance of the condition of 'forthwith' sending of the detention order along with the supporting records to the Government, and there is unexplained delay in passing the final order on 15.05.2022, when the Advisory Board Report was received on 22.04.2022. 15. In W.P.(Crl) No.531 of 2022, we find that there is no forthwith communication of the order as mandated under Section 3(3) of Kerala Anti-Social Activities(Prevention) Act, 2007, since the date of order is 05.02.2022, and the communication is made on 10.02.2022, after five days from the date of execution of the order. We, hence, direct both the detenues in the above writ petitions to be released forthwith if their continued incarceration is not required in connection with any other crime. Both writ petitions are allowed.
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