Anandhavalli vs State Of Kerala

C.S.Sudha, J.

In this writ petition, the petitioner, the mother of the detenu, challenges Ext.P1 order of detention dated 10/01/2023 passed under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (KAAPA) by the 3rd  respondent treating the detenu as a known goonda.

Ext.P1 order is challenged mainly on two grounds, namely -

(i) non application of mind by the detaining authority and (ii) delay in executing Ext.P1 order.

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

According to the learned counsel for the detenu, at the time of passing Ext.P1 order, the detenu was already in judicial custody in crime 625/2022, Kadakkavoor police station, registered alleging commission of the offence punishable under Section 22(c) of the NDPS Act. Section 22(c) deals with commercial quantity of the contraband drug. When commercial quantity is involved, the bar under Section 37 of the NDPS Act comes into play and there would be no possibility of the detenu getting bail. In such circumstances, the detaining authority ought to have stated as to why a detention order was necessary. In Ext.P1 order, the said fact has not been stated and therefore the argument advanced is that there has been non application of mind by the detaining authority.

Per contra, the learned Government Pleader submitted that reasons have been clearly given in Ext.P1 order and hence there is no infirmity. Reference was also made to the decision Union of India v. Dimple Happy Dhakad, 2019 KHC 6662.

In Dimple Happy Dhakad (Supra), it has been held that the satisfaction of the detaining authority that the detenu though already in custody, is likely to be released on bail and on being released, he is likely to indulge in further prejudicial activities, is the subjective satisfaction of the detaining authority. The Apex Court referring to its earlier decision in Senthamilselvi v. State of Tamil Nadu, 2006 (5) SCC 676, pointed out that the satisfaction of the authority coming to the conclusion that there is likelihood of the detenu being released on bail is the subjective satisfaction based on the materials before it and normally the subjective satisfaction arrived at is not to be interfered with. In the said case, it was found that a reading of the grounds of detention clearly indicated that the detenu had been indulging in smuggling gold along with others and habitually committing the offence unmindful of the revenue loss and the impact on the economy of the nation. The detention order referred to the role played by the detenu in receiving the gold and disposing of the smuggled gold through his multiple jewellery outlets and his relatives. In such circumstances, the Apex Court held that the High Court went wrong in quashing the detention order merely on the ground that the detaining authority had failed to expressly record the finding that there was real possibility of the detenu being released on bail.

It is well settled that there is no prohibition in law to pass a detention order in respect of a person who is already in custody in respect of a criminal case. However, if the detention order is challenged, the detaining authority will have to satisfy the court that the authority was fully aware of the fact that the detenu was actually in custody and there are materials before the authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being  released  he  would  probably  indulge  in  activities  which  are prejudicial to public order. (Huidrom Konungajo Singh v. State of Manipur, (2012) 7 SCC 181).

In the case on hand, the relevant portion of Ext.P1 order reads-

"റ പ  ർട  അന ബന പ ഖകള  പ  പ  ധ ചത ൽ ശ    ബ  ന ഥ  S/o.ത ളസ ധ ൻ കക ലപ തക പകസ  ഉൾക ക$ അ$ യ &$  ക റക(ത)ങള ൽ ഏർക ട വ  നത ന ൽ  $ യ ള ക$  ദ/ന / ന  ശപവർതനങൾ ന   ക & നത ന യ  ച റയ ൻക ഴ  പപ ല സ  പ4ഷന ൽ നമർ 99/GL/06/BSD ത യത . 05.01.2006 ശപക   റ7ഡ  ഹ 4റ ഷ റ  ആ  ഭ ച ട ളത  ആയത  ന ലന ർത വ  നത മ ണ. ച റയ ൻക ഴ  പപ ല സ  പ4ഷൻ ദശക84/1997 U/s 143,146, 149, 302 IPC & 27 of Arms Act നമർ പകസ ൽഎത ർകക യ &  ത   വനനപ   ഫ 4  ശ$ &  പക $ത ജ വപ )ന    ക വ ധ ച  ത   വനനപ    കസൻശ$ൽജയ ല ൽ പ ർ  ച  വ പവ ന യമ പഠനത ന യ  ബഹ :പക $ത യ ൽ ന ന    കയ ൽ ഇളവ  സമ / ച  ജയ ൽ പമ ച തന യ ട ളത മ ണ. ത $ർന  എത ർകക  ബഹ: സ ശപ  പക $ത യ ൽ അ  ൽ നൽക    ക റദ  കചയG  15.09.2016 ത യത  ഉത വ  പന$ യ ട ളത മ ണ.  പഠനത ന യ  പക $ത യ ക$ അന മത  വ ങ  ജയ ൽ പമ ച തന യ എത ർകക  വ ണ  ഗ   ത  ക റക(ത)ങള ൽ ഏർക ട ട ളത ണ.  എത ർകക കയ ആയത ൽ ന ന  പ ൻത     & നത ന  പവണ  അറ4,  റ മ ൻറ  ത $ങ യ ന$പ$ കൾ സJ ക  ച ട  അ$ &$  സമ ധ ന ല ഘന ശപവർത കള ൽ ഏർക ട  വനത ന ൽ എത ർകക കയ ന യമത ൻ് കറ വ  ത യ ൽ ന ർത ൻ $ യ ന ൽ ന ന  ഒ   വർഷ& ലപതയ &  സമ ധ ന പ ലനത ന ള പബ ണ  വയ   & നത പല&  ച റയ ൻക ഴ പപ ല സ  പ4ഷന ൽ ന ന  u/s.   107   സ .ആർ.പ.സ ശപക  മ ള റ പ  ർട  ത   വനനപ   സബ  ഡ വ ഷണൽ മജ സ പശ$റ  പക $ത  മ മ കക ഹ ജ  &  അന ബന ന$പ$ കൾ പNർത യ & യ ട ളത  ത $ർന MC  37/2022 നമ  യ  വ ച  ണയ ല   ക& 20.04.2022 ത യത  പക $ത  എത ർകക കയ സമ ധ നപബ ണ  ന$പ$ കൾ&  വ പധയന & യ ട ളത ണ.

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ശ  . ബ  ന ഥ  S/o.ത ളസ ധ കനത ക യ ള പകസ കള ക$ വ  കലന കചയG . $ യ ൻ 7 പകസ കള ൽ ഉൾക ട   & ന . അവയ ൽ 4 പകസ കള കല എൻ.ഡ .പ .എസ  ആക Pല 20(b)  (ii)  (B),29,  22  (C)  എന വക   കൾ ശപക   ക റക(ത) കചയG   & ന .   ഈ ക റക(ത)ങൾ 2007 കല സ മNഹ) വ   ദ ശപവർതനങൾ (ത$യൽ) ആക Pകല 201   വക   ന കറ ന ർവചനത ൽ ഉൾക $ നത ണ. കN$ കതഇന)ൻ   ക ന യമത കല XVI, XVII, XXII എന  അദ) യങള ൽ കപ$ ന 354, 341, 323, 507, 509, 354 D, 427, 447 എന  വക   കൾ ശപക   ക റക(ത) കചയG   & ന . അത ന ൽ ശപസ Gത ആക Pകല 2 (t )(i ) & 2 (t )(ii ) വക   കൾശപക   ഒ  'റ7ഡ " ആയ കണ& & യ   ന .

ഈ  ണ  ന ർവചനങൾ പചർത  $ യ ൻ ആക Pകല 2 (j ) ന ർപദ  & ന ത ത ൽ 7 വ)ത)സG പകസ കള ൽ ശപത യ യത ന ൽ ആക Pകല 2 (o)(ii) വക    ശപക   ഒ  "ഒ   അറ യക $ നഗ ണയ യ " പബ ധ)ക ട   ന . ഉപ/) ഗസർ വ / യ യ പകസ കള ൽ കത ണ മ തല കൾ സJതശന സ ക കള ക$സ ന ധ)ത ല ണ കകണ$ ത ട ളത. പമൽ റഞ ശപക  മ ള ശപവർത കള ൽ ന ന  ശ  . ബ  ന ഥ കന ത$യ നത ന  ന ലവ ല   & ന സ ധ  ണ ന യമങൾ അപ ) പകമനG  $ യ ന കറ അ$ &$ യ ള ശപവർത കൾ പ  പ  ധ ചത ൽ ന ന  വ)കമ യ സ ഹച )ത ൽ കപ ത ജനങള ക$ ജ വന സJത ന  സ  കണ നൽപകണത  അത)ന പപക തമ കയ ല  $ യ കനസJതശനമ യ വ $ ന പക ആ ശപപ/ ത  സമ ധ ന ല ഘനപ മ യ ക റക(ത)ങൾ അ$ &$  ഉണ ക ൻ സ ധ)തയ ളത ന ല  $ യ കന അത ൽ ന ന  പ ന     & നത ന  മറ  മ ർഗങൾ ഇല തത ന ല  ന ലവ ൽ ജ ഡ ഷ)ൽ ക4ഡ യ ൽ ത $ർന  വ  ന $ യ കന കപ ത ജന സമ ധ ന ല ഘന ശപവർത കള ൽ ന ന  അ$ യന  മ യ  പ ന     & നത പല& യ  $ എത ർകക ക&ത ക 2007 കല പക ള സ മNഹ) വ   ദ ശപവർതനങൾ (ത$യൽ) ആക Pകല വക   3  (1  )  ശപക   ജ ല  പപ ല സ  പമധ വ  (ത   വനനപ   റNറൽ) ൻകറ 24.10.2022, 12,12,2022 എന  ത യത കള കല റ പ  ർ$  പ  ഗന ച ക ലത മസ കN$ കത ഉ$ന$ ക  തൽത$ങൽഉത വ പ റക $ വ & ന.”

Therefore, though the detaining authority has not stated in so many words that though the detenu is in custody in a NDPS case involving commercial quantity of drug, Ext.P1 order is still necessary, a reading of the order shows clear application of mind by the detaining authority in passing the order. The reasons which prompted the passing of the order are clearly stated. The subjective satisfaction arrived at by the detaining authority in passing Ext.P1 order cannot be interfered with by this Court. Therefore, the argument that there has been no application of mind is only liable to be rejected.

The second argument is regarding the delay in executing Ext.P1 order. In support of this argument, reference was made to a Division Bench decision of this Court in Saleena v. State of Kerala, 2022 SCC Online Ker. 6583 : (2023) 1 KLJ 133. The learned Government Pleader on the other hand relies on another Division Bench decision of this Court, that is, Anju P.Anilkumar v. State of Kerala, 2023 (4) KLT 67. In Saleena (Supra), the detention order had been passed on 21/03/2022 when the detenu therein was already in judicial custody from 03/02/2022 onwards. His bail application was dismissed on 03/02/2022. Though the detenu was already in custody, the respondents had taken steps to execute the detention order by the formal arrest of the detenu only on 30/03/2022. Hence, the contention taken in the said case was that the delay of nine days, that is, the time gap between Ext.P1 detention order dated 21/03/2022 and the recording of formal arrest of the detenu for executing the order of 30/03/2022, was fatal. The Division Bench held that after having issued the detention order on 21/03/2022, nothing prevented the authorities concerned to make a request immediately to the jurisdictional magistrate for grant of permission to arrest the detenu. However, the formal application was moved only on 26/03/2022. Thereafter, though permission was granted on 28/03/2022, the detention order was executed only on 30/02/2022. It was held that the authorities concerned had not acted with due diligence in executing the detention order in order to effectuate the averred objective of the measure of preventive detention. The approach of the authorities was held to be not serious and a responsible cause of action and hence in the facts and circumstances of the case, it was held that the delay in executing the order was fatal.

10.1. In Anju P. Anilkumar (Supra) a delay of 17 days in executing the order was held not inordinate or fatal as proper explanation had been furnished by the respondents for the time taken for executing the order.

In the case on hand, admittedly the detenu was in custody when Ext.P1 order dated 10/01/2023 was passed. Immediately on the next day, i.e., on 11/01/2023 the third respondent had submitted a request to the Sessions Court, Thiruvananthapuram seeking permission to execute Ext.P1 order. The request was granted on 12/01/2023. Ext.P1 order was thereafter executed on 16/01/2023. In the writ petition, no ground has been raised regarding the delay in execution of the order. The ground raised is delay in passing Ext.P1 order, which point was never urged at the time of arguments. Therefore, it was pointed out by the learned Government Pleader that since such a ground had never been raised, no explanation has been given by the respondents in the counter. It is well settled that in an application for writ of habeas corpus, the practice is not to follow strict rules of pleadings. Normally, writ petitions are decided on the basis of affidavits and the petitioner cannot be permitted to raise grounds not taken in the petition at the time of hearing. However, the same rule is not applicable to a petition for grant of a writ of habeas corpus. It is enough for the detenu to say that he is under wrongful detention and the burden lies on the detaining authority to satisfy the court that the detention is not illegal or wrongful and that the petitioner is not entitled to the reliefs claimed. (Smt.Icchu Devi Choraria v. Union of India, AIR 1980 SC 1983 ; S.P.Gupta v. President of India, AIR 1982 SC 149 and Mohinuddin v. District Magistrate, Beed, AIR 1987 SC 1977).

It is also well settled that all delay is not fatal. It depends on the facts and circumstances of each case. If there is inordinate or unreasonable delay, then the same will have to go in favour of the detenu. In Abdul Salam alias Thiyyan v. Union of India (AIR 1990 SC 1446), the Apex Court has held that the delay in all cases will not sever the necessary nexus considering the nature of the prejudicial activities indulged by the detenu and the likelihood of his repeating the same. It is this potentiality in him that has to be taken into consideration and if the detaining authority is satisfied on the available material, then on mere delay, as long as it is not highly unreasonable and undue, the Court should not normally strike down the detention on that ground.

In Saleena (Supra) relied on by the petitioner there was delay of 5 days in moving the court concerned as per whose order the detenu was in judicial custody, for permission to execute the order. After getting permission also, there was further delay in executing the order. It was in such circumstances the delay was held to be fatal. In the case on hand, the authority concerned is seen to have taken steps immediately for moving the court concerned seeking permission to execute the detention order. It is true that it is thereafter, there occurred some delay in executing the order. This is not a case where the detenu was on bail. Had he been on bail and still the authorities concerned had delayed the execution of the order, then that would have been a case in favour of the detenu. In the facts and circumstances of this case, we do not think that the delay of three days in executing the order of detention while the detenu was in judicial custody, is fatal. Therefore, the argument regarding delay is only liable to be rejected.

In the result, the petition is found to be without any merits and hence it is dismissed.

Interlocutory applications, if any pending, shall stand closed.