SUSHEELA Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition filed under Article 226 of the Const itution seeking to issue a writ of habeas corpus directing the 4 th respondent to produce the body of the detenu and to release him, to issue a writ of certiorari for calling for the records in connection with Ext.P2 detention order, as confirmed by Ext.P5 order, and to set aside the same.

(2.) The petitioner is the mother of the detenu, who was arrested, now undergoing detention on the orders of the 2 nd respondent, issued under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007, hereinafter referred to as 'the Act'. He was arrested on 06/08/2019 on the basis of Ext.P2 detention order issued by the District Magistrate, Alappuzha, who was acting on the basis of Ext.P1 report of the 3rd respondent, the District Police Chief, Alappuzha. According to the petitioner, the said order is vitiated, illegal, arbitrary and violative of the basic principles and statutory requirements; though Ext.P1 report was issued on 31/12/2018, Ext.P2 was issued after a period of 114 days of the last prejudicial activity and thereby the live link was snapped and the detention order is liable to be set aside on that ground alone. The explanation for the delay shown in Ext.P2 is unreasonable and inordinate, which is sufficient to doubt the genuineness of the subjective satisfaction arrived at by the detaining authority. The impugned order was passed without application of mind and on that ground also it is to be set aside. There is also huge gap between Ext.P2 order and the date of detention. The detenu has never gone absconding, still the 5 th respondent did not execute the order. The detenu has not involved in any anti-social activity during the period from 10/10/2018 to 06/08/2019, till the execution of the order. He has already undergone more than half of the period of detention imposed on him. Moreover, Crime No.978/2017 of Kurathikkad Police Station, one of the crimes referred for initiating action under the Act against the detenu, was registered suo motu. From Ext.P1, it is evident that the detenu had not involved in any anti- social activity, when he had executed a bond under Section 107 of the Cr.P.C. All the six cases relied on by the respondents for passing Ext.P2 order were registered within the limits of Alappuzha District and, therefore, there is no reason why Section 15 of the Act should not have been invoked. Crime No.1556/2018 of Haripad Police Station was registered on trivial grounds. According to the petitioner, all these matters indicate lack of application of mind on the part of the 2 nd respondent in passing Ext.P2 order.

(3.) Smt.Priyamol M.P., Under Secretary, Home Department has filed a counter affidavit, for the 1 st respondent, denying the allegations in the writ petition. According to the respondent, there are valid reasons to state that the detenu could be classified as a 'known rowdy' under Section 2(p)(iii) of the Act. Such a decision was taken based on records and in the interest of public safety, security, peace and tranquility of the society. The detention order was passed complying with the procedural formalities; the Government have issued orders approving the detention order under Section 3(3) of the Act. Later, the matter was placed before the Advisory Board under Section 9 and the Advisory Board also formed the opinion that sufficient cause had been made out to justify the detention. Thus, the order was confirmed by the Government under Section 10(4) of the Act. On the basis of six cases referred by the sponsoring authority, the detaining authority reckoned six instances of anti-social activities committed by the detenu. She has detailed the six cases relied on by them in passing Ext.P2 order. According to her, the sponsoring authority gave the report to the 2nd respondent District Magistrate, who, after considering all the details, passed the detention order under Section 3(1) of the Act. Even earlier, the detenu was under preventive detention, twice, under the Act. There were cases registered in 2016, 2017 and 2018 against him. Out of the six cases referred in Ext.P2 order, charge sheets have been laid in three cases and the other three cases are under investigation. Even after two earlier detentions, the detenu was continuously indulging in anti-social activities. Therefore, he continues to be a 'known rowdy' under Section 2(p)(iii) read with Section 2(t)(i) and (ii) of the Act. According to the respondent, both the sponsoring authority and the Authorised Officer were satisfied that preventive detention of the detenu is absolutely necessary. After the registration of the crime on 09.10.2018, the detenu went absconding. The delay between the last anti-social activity and the detention order is only 114 days, the reason for the delay has been clearly stated in the order. The Authorised Officer had taken time for collecting the materials and to assess satisfaction for issuing the order of preventive detention. The time taken is only reasonable and that has not snapped the live link between the last date of anti-social activity and date of passing the Ext.P2 order. Even though all possible steps were taken to arrest him, he was evading arrest. At last he was arrested when he had surrendered before the Judicial First Class Magistrate Court-II, Haripad in another case. The District Magistrate issued the order of detention at the right time after attaining satisfaction of the twin components of preventive detention- objective satisfaction and subjective satisfaction, and upon compelling circumstances, to safeguard public peace and order. So, the respondent prayed for dismissing the petition.