Aji V Nair vs State Of Kerala

C.S.Sudha, J.

Ext.P1 externment order issued under Section 15(1) (a) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) and Ext. P5, the modified externment order are under challenge in the present writ petition. By way of Ext.P1 externment order issued by the second respondent, the petitioner has been restrained from entering the territorial limits of Ernakulam City Police for a period of one year. Ext.P2 order has been modified as per Ext.P5 order of the fifth respondent, the Advisory Board, under Section 15(2) of the KAAPA, by which the period of externment has been reduced from one year to nine months.

The main challenge raised against Ext.P1 is that there is an unexplained delay in passing Ext.P1 externment order. According to the learned counsel for the petitioner, there is an inordinate, unjustifiable, and unexplained delay between the last prejudicial activity and externment order. While the last prejudicial activity took place on 29.09.2022, the proposal for externment was made by the third respondent only on 19.12.2022. There is an unexplained delay of 2 months and 20 days. The externment order was passed on 27.01.2023, which is again after more than one month of the proposal. There is a delay of 3 months and 28 days in total between the last prejudicial activity and the passing of the externment order. Referring to the dictum in Jasid A.S v. State of Kerala, 2022 (7) KHC 599, it was submitted that due to the inordinate delay or gap between prejudicial activity and Ext. P1 order, the live link between the last prejudicial activity and the purpose of the externment had snapped, on which ground alone Ext.P1 is liable to be set aside.

2.1. Per contra, it was submitted by the learned GP that there has been no unreasonable delay and that only a reasonable time has been taken to complete the formalities before the issuance of Ext.P1 order.

Heard Sri. Ajeesh M Ummer, the learned counsel for the writ petitioner and Sri.K.A.Anas, the learned Government Pleader for the respondents.

An order of externment should be issued only in extraordinary circumstances when the issuing authority is fully satisfied that there is an urgent requirement to curtail the freedom of a person to uphold the principle that the welfare of Society is the supreme law. Preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it and to prevent him from doing. There cannot be any manner of doubt that an order of externment is an extraordinary measure. The effect of the order of externment is of depriving a citizen of his fundamental right of free movement throughout the territory of India. In practical terms, such an order prevents the person even from staying in his own house along with his family members during the period for which this order is in subsistence. In a given case, such an order may deprive the person of his livelihood. As an externment order is something that would curtail the above-mentioned rights of a person, it is with abundant caution that any authority should issue such an order.

4.1. As repeatedly held by the Apex Court, there is no hard and fast rule that merely because there is a time lag between the offending acts and the date of order of detention, the causal link must be taken to be snapped and the satisfaction reached by the detaining authority should be regarded as unreal, but it all depends upon the facts and circumstances of each case and the nature of the explanation offered by the detaining authority for the delay that had occurred in passing the order. The delay by itself may not be inordinate or long; but, if the delay remains unexplained, it becomes unreasonable. There must be a “live and proximate link” between the grounds of externment alleged by the detaining authority and the avowed purpose of externment, namely, to prevent the detenu from indulging in further prejudicial activities. In appropriate cases we can assume that the link is “snapped” if there is a long and unexplained delay between the last prejudicial activity and the date of externment order.

Despite this well-settled position, the respondents have not chosen to offer any explanation as to why there was a delay between the last prejudicial activity and the passing of Ext.P1 order. No plausible reason(s) or any reason(s) for the matter has been given by the detaining authority for the delay in passing Ext.P1 order. After the last prejudicial activity of the detenu which was on 29/09/2022, the proposal for externment is seen made only on 19/12/2022. As to why no action was taken for a period of 2 months and 20 days, has not been explained. Ext.P1 order of externment is passed yet again after the expiry of one month after the proposal is submitted. Therefore, it is also doubtful whether there has been a proper application of mind by the detaining authority as to the necessity for passing an externment order belatedly. Hence, the challenge to Ext.P1 externment order will have to succeed.

Accordingly, the writ petition is allowed and Ext.P1 order of externment is quashed.

Interlocutory applications, if any pending, shall stand closed.