Aslaha V K vs State Of Kerala

G.Girish, J.

The wife of the detenu has filed this petition challenging Ext.P1 detention order dated 21.05.2024 of the District Magistrate, Palakkad, directing the preventive detention of the petitioner’s husband under Section 3(1) of the Kerala Anti-Social Activities Prevention Act [for short ‘KAA(P)A].

Ext.P1 order would reveal that the Detaining Authority took into account the recommendations dated 11.01.2024, 11.04.2024 and 03.05.2024 of the District Police Chief, Palakkad for arriving at the finding that the detenu comes under the definition of ‘known goonda’. The above recommendations were in respect of six cases registered against the detenu, among which four related to NDPS offences. In one case, that is, Crime No.24/2022 of Thrithala Excise Range, the detenu is said to have pleaded guilty in respect of the offence under Section 20(b)(ii)(A) of the NDPS Act and suffered a sentence of fine of Rs.4,000/- on 09.12.2023. The last prejudicial activity attributed to the detenu is in respect of Crime No.34/2024 of the Chalissery Police Station for the commission of offence under Section 341, 323, 294(b) and Section 392 I.P.C. The date of commission of the said offence was on 18.01.2024, and the detenu was arrested and remanded to judicial custody on 20.01.2024. On 19.02.2024, he is said to have been released on bail.

In Ext.P1 order, the Detaining Authority would state that the Sponsoring Authority submitted additional report about the Crime No.34/2024 of Chalissery Police Station along with the records showing the involvement of the detenu only on 03.05.2024 and that there occurred a slight delay in passing the detention order since it was necessary to meticulously scrutinize the relevant records.

The petitioner has raised various averments challenging the legal sanctity of Ext.P1 order, among which the two grounds which are found to be material and substantive, alone are discussed hereafter. It is stated that Ext.P1 order along with the relevant records were not sent forthwith to the Government for approval, and to the Director General of Police for information, as required under Section 3(3) of the KAA(P)A. According to the learned counsel for the petitioner, the aforesaid lapse would vitiate the sanctity of the proceedings initiated against the detenu. Furthermore, the long delay of 4 months and 3 days in between the last prejudicial activity of the detenu and the date of Ext.P1 order is pointed out as a circumstance which would snap the live-link between the last prejudicial activity and the purpose for which the preventive detention order is passed. It is stated that the above aspect would reveal that there was actually no necessity for initiating the drastic steps of preventive detention against the detenu.

The 3rd respondent (District Police Chief, Palakkad) filed statement countering the averments in the petition filed by the petitioner. It is stated by the 3rd respondent that the detention order passed against the detenu along with relevant records were forwarded to the Government and the Director General of Police within time and hence there was no infraction of Section 3(3) of the KAA(P)A. As regards the delay in forwarding the report pertaining to the last prejudicial activity of the detenu, the 3rd respondent would contend that there was no undue delay since a detailed report was to be prepared after collecting the case documents from different police stations.

Heard Sri.M.H.Hanis, the learned counsel for the petitioner and Sri.K.A.Anaz, learned Senior Government Pleader.

The learned counsel for the petitioner has relied on Ext.P2 application under the Right to Information Act, which he sent to the Public Information Officer of the Office of the District Collector, Palakkad, and Ext.P3 reply given to it, to show that Ext.P1 detention order and the relevant records were not sent forthwith to the Government and Director General of Police as required under Section 3(3) of the KAA(P)A. To the first question in Ext.P2 as to when Ext.P1 order was sent by way of e-mail to the Government and the State Police Chief, the answer given in Ext.P3 is that it was submitted directly on 30.05.2024. To the second question in Ext.P2 as to whether Ext.P1 order was served directly or through post, and if so on which date, the answer given in Ext.P3 is that it was served directly on 30.05.2024. There is absolutely no indication in Ext.P3 that Ext.P1 order and the relevant records were sent by way of e-mail to the Government and the State Police Chief, despite a specific query made in that regard in Ext.P2 application submitted under the provisions of Right to Information Act. Thus, it is apparent from Ext.P3 reply given by the Public Information Officer of the Office of the District Collector, Palakkad that Ext.P1 order and the supporting records were submitted only directly to the Government and the State Police Chief only on 30.05.2024, that is, after the elapse of 9 days from the date of the said order. The delay in the above regard would vitiate the sanctity of the proceedings initiated against the detenu for his preventive detention. It has been held by the Apex Court in Hetchin Haokip v. State of Manipur and Others [(2018) 9 SCC 562] that the authorities concerned are expected to forward the detention order and relevant records within a reasonable time whenever the law mandates the despatch of such records forthwith.

The learned Senior Government Pleader argued that Ext.P1 order and the supporting documents were sent by way of e-mail to the Government and the State Police Chief on 22.05.2024 itself, even though the Public Information Officer of the District Collectorate, Palakkad did not give such a reply in Ext.P3 to the query put by the learned counsel for the petitioner in Ext.P2 application filed under the Right to Information Act. The screenshots of an e-mail communication including the image of the relevant page displayed in the computer monitor are placed before us by the learned Senior Government Pleader to substantiate his argument that Ext.P1 order and the relevant records were sent to the Government and State Police Chief on the immediate succeeding day of the date of Ext.P1. We are not inclined to accept the above documents since it is not possible to discern from it, what all records were sent as attachments to the said e-mail. That apart, it is not possible to think that the Public Information Officer who gave Ext.P3 reply to the learned counsel for the petitioner was not aware of the e-mail communication said to have been sent on 22.05.2024 in compliance with the mandate of Section 3(3) of the KAA(P)A. The failure of the Public Information Officer to state in Ext.P3 about the despatch of Ext.P1 order and the supporting documents by way of e-mail to the Government and State Police Chief, can only lead to the irresistible conclusion that the mandate of Section 3(3) of the KAA(P)A in that regard had not been complied by the Detaining Authority. Therefore, the order under challenge in this petition is liable to be set aside for that reason.

It is pertinent to note that Ext.P1 order has been passed after a period of four months and three days from the last prejudicial activity attributed to the detenu in Crime No.34/2024 of Chalissery Police Station. The reason stated by the Detaining Authority for the aforesaid delay is that the Sponsoring Authority submitted additional report and relevant records pertaining to the aforesaid crime only on 03.05.2024. However, it could be seen from Ext.P1 order that the Sponsoring Authority had filed two earlier recommendations on 11.01.2024 and 11.04.2024. The first four crimes attributed to the detenu are reported to have been committed on 17.09.2022, 02.10.2022, 07.02.2023 and 23.09.2023 respectively. That being so, the recommendation said to have been submitted by the Sponsoring Authority on 11.01.2024 would be definitely containing the details and relevant records of the aforesaid four crimes, which are more than enough for the Detaining Authority to proceed against the detenu by considering him as a ‘known goonda’. There is absolutely no explanation offered by the Detaining Authority for its failure to initiate prompt proceedings on the basis of the recommendation dated 11.01.2024 of the Sponsoring Authority. Furthermore, the Detaining Authority has no explanation for its failure to act upon the subsequent recommendation dated 11.04.2024 said to have been made by the Sponsoring Authority. Taking into account of the laxity apparent from the above inaction of the Detaining Authority, it is not possible to accept the explanation that the delay in passing Ext.P1 order happened since the Sponsoring Authority submitted the third recommendation as an additional report pertaining to the last prejudicial activity of the detenu, only on 03.05.2024.

It is also pertinent to note that the 3rd respondent (District Police Chief, Palakkad) has not offered any plausible explanation for the delay of more than three months in submitting the recommendation to the Detaining Authority in connection with Crime No.34/2024 of the Chalissery Police Station which is stated to be the last prejudicial activity of the detenu. The detenu is alleged to have committed the aforesaid crime on 18.01.2024, and he was arrested on 20.01.2024. The detenu has been granted bail in the aforesaid crime on 19.02.2024. Still the Sponsoring Authority did not deem it necessary to submit report before the Detaining Authority till 03.05.2024 about the need to consider the aforesaid crime also for initiating proceedings for his preventive detention. The aforesaid delay can only be said to have happened since the Sponsoring Authority was either sleeping over their responsibility to take prompt steps, or there was absolutely no urgency to detain the detenu for the maintenance of public order. In either case, the unexplained delay in submitting additional report pertaining to the last prejudicial activity of the detenu, which caused the delay of 4 months and 3 days in passing Ext.P1 order, would vitiate the proceedings initiated against the detenu.

As a conclusion to the aforesaid discussion, we find that Ext.P1 order passed by the 2nd respondent sans legal sanctity, and hence, it is liable to be annulled.

In the result, we set aside Ext.P1 order. The detenu is ordered to be released forthwith, if his custody is not required in any other cases.