Narayanan, K. vs State of Kerala and Others

Antony Dominic, J.—The challenge in this writ petition is against Ext. P-1 order dated 19-1-2013 issued u/s 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as ''Act'' for short).

Petitioner is the father of Rajesh (hereinafter referred to as ''detenu'' for short). The detenu was accused in SC Nos. 315/08, 256/10, 201/10, 526/11 and CC No. 2989/12, which were pending at the Criminal Courts at Palakkad. All these cases were charge-sheeted based on the crimes registered at the Malampuzha Police Station. Pointing out the involvement of the detenu in the aforesaid criminal cases, the 3rd respondent, the sponsoring authority, submitted Ext. P-5 report dated 5-1-2013 to the 2nd respondent, the detaining authority. In this report, the 3rd respondent, after explaining the necessity to do so, requested that proceedings be initiated for classifying the detenu as a "known rowdy" as provided u/s 2(p) of the Act and to order his detention u/s 3 thereof in order to prevent the detenu from continuing his antisocial activities. Based on the report thus submitted, the 2nd respondent, the detaining authority passed Ext. P-1 order dated 19-1-2013 classifying the detenu as a known rowdy u/s 2(p) and ordered his detention u/s 3 of the Act. Accordingly, he was detained on 21-6-2013 and since then the detenu is in detention at the Central Prison, Kannur. It is in this background this writ petition has been filed with a prayer to set aside Ext. P-1 order and to set the detenu at liberty.

We heard the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.

Two contentions were urged before us. The first contention raised was that there was inordinate and unexplained delay in the execution of the order of detention. According to the learned counsel, based on Ext. P-1 order of detention issued on 19-1-2013, the detenu was detained only on 21-6-2013. As a result of this delay of more than 5 months, the live link between the prejudicial activity and the purpose of detention is lost rendering the detention'' unconstitutional. In support of this contention, learned counsel placed reliance on the judgments of this Court in Smt. B. Shareefa Ummer Vs. Joint Secretary to the Govt. of India and Others, , Soja Beegum Vs. Additional Chief Secretary to Government, and the Apex Court judgment in A. Mohammed Farook Vs. Jt. Secy. To G.O.I. and Others, .

On the other hand, referring to paragraph 8 of the counter-affidavit filed by the 1st respondent and para 10 of the counter-affidavit filed by the 3rd respondent, learned Government Pleader attempted to resist the contention by arguing that the detenu was absconding and despite efforts, could not be detained. According to her, in such a case, it is not open to him to raise the plea that the live link is snapped rendering the detention illegal.

Having gone through the judgments that are relied on by the learned counsel for the petitioner noticed above, we are fairly clear in our mind that the principle is settled that in a case where there is inordinate and unexplained delay either in passing the detention order or in executing the same, it is open to the detenu to raise an argument that as a result of the delay, the live link between the prejudicial activity and the purpose of his detention is snapped and that therefore the order of detention and the detention itself is unconstitutional and invalid.

Yet another principle that emerges from the judgment of the Apex Court in Subhash Popatlal Dave Vs. Union of India (UOI) and Another, is that those who have evaded the process of law shall not be heard by a constitutional court to say that their fundamental rights are in jeopardy. These principles are seen in paras 98, 99 and 100 of the judgment which reads thus:

Therefore, I am of the opinion that those who have evaded the process of law shall not be heard by this Court to say that their fundamental rights are in jeopardy. At least, in all those cases, where proceedings such as the one contemplated u/s 7 of the COFEPOSA Act were initiated consequent upon absconding of the proposed detenu, the challenge to the detention orders on the live nexus theory is impermissible. Permitting such an argument would amount to enabling the law breaker to take advantage of his own conduct which is contrary to law.

Even in those cases where action such as the one contemplated u/s 7 of the COFEPOSA Act is not initiated, the same may not be the only consideration for holding the order of preventive detention illegal. This Court in Shafiq Ahmad Vs. District Magistrate, Meerut and Others, held so and the principle was followed subsequently in M. Ahamedkutty Vs. Union of India (UOI) and Another, , wherein this Court opined that in such cases, the surrounding circumstances must be examined.

In both Shafiq Ahmad and Ahamedkutty''s cases, these questions were examined after the execution of the detention order. Permitting an absconder to raise such questions at the pre-detention stage, I am afraid would render the jurisdiction of this Court a heaven for characters of doubtful respect for law.

Bearing these principles in mind, we shall proceed to examine whether the delay alleged in this case is inordinate and whether the same has been explained by the respondents. In paragraph 8 of the counter-affidavit filed by the 1st respondent, it is stated thus:

It is true that there is a gap of approximately 5 months between the order of detention and its execution. But this delay was caused due to the recalcitrant attitude of the detenu, who had been intentionally evading the arrest. In this regard it is humbly submitted that the petitioner filed a Writ Petition (Civil) No. 6306/2013 before this Hon''ble Court challenging the detention order at the pre-execution stage. This would amply prove that the detenu was thoroughly aware of the order of detention issued against him but had been absconding intentionally. If the detenu was a law abiding citizen, he would definitely have surrendered before the authorities concerned. The above-mentioned Writ Petition was dismissed by this Hon''ble Court on 27-5-2013.

In the counter-affidavit filed by the 3rd respondent, he has stated thus in para 10:

Ground 7 of the writ petition is incorrect and is devoid of merits. The detention order against Shri Rajesh @ Kuttayi was passed on 19-1-2013. Somehow he got information about the detention order and in order to escape from the lawful arrest, he left the locality. On 22-2-2013 SHO, Malampuzha reported the inability of executing the detention order. In this regard a report was submitted to the District Magistrate, Palakkad on 25-2-2013 for taking action u/s. 6 of KAAPA. But on 28-1-2013 Shri Narayanan, father of Rajesh @ Kuttayi, applied for the copies of documents regarding the detention under Right Information Act, 2005 and collected the copies of details and detention order on 16-2-2013. After collecting copies of the documents, Sri Narayanan, filed W.P. (C)/6306/13 on 6-3-2013 before the Hon. High Court of Kerala challenging the detention of his son under KAAP Act. Since the above case was pending before the Hon. High Court of Kerala and he was absconding from the locality, the detention order could not be executed. The fact that the detenu was concealing himself for evading the arrest was submitted before the Hon. High Court, through the counter-affidavit filed by the Government. The aforesaid Writ Petition filed by the petitioner was withdrawn by him on 27-5-2013.

Reading of both these affidavits would show that the definite case of the respondents is that on coming to know of the detention order that was issued against the detenu, he had absconded only with the intention to escape from the process of law. It is also seen that challenging Ext. P-1 order, he had approached this Court by filing W.P. (C) No. 6306/13, which was filed on 6-3-2013 and that the writ petition was subsequently dismissed as withdrawn on 27-5-2013. Paragraph 11 of the counter-affidavit of the 3rd respondent also explains about the consistent absence of the detenu on dates when the cases against him were posted before the Trial Court and this paragraph reads thus:

It is submitted that though all the five cases pending before various courts against the detenu were posted for hearing on various ''days after issuance of the detention order and before his detention, the detenu has not appeared for hearing except on 24-4-2013 in Cr. No. 250/08 before the Fast Track III Court, Palakkad it is submitted that the case in Cr. No. 107/07 was posted for hearing on various dates i.e., 22-1-2013, 29-1-2013, 1-2-2013, 4-2-2013, 12-2-2013, 19-2-2013, 23-2-2013, 26-2-2013, 4-3-2013, 13-3-2013, 18-3-2013, 21-03-2013, 27-3-2013, 2-4-2013,4-4-2013, 5-4-2013, 10-4-2013, 23-5-2013, 16-6-2013 and 26-6-2013 and the detenu has not appeared the Hon. Addl. Sessions Court II, Palakkad in any of these dates. The case in Cr. No. 249/08 was posted for hearing on 18-2-2013 and 17-6-2013, the detenu has not appeared the Hon. Fast Track III Court, Palakkad in any of these dates. The case in Cr. No. 250/08 was posted for hearing on 18-4-2013, 23-4-2013 and 24-4-2013, the detenu has not appeared the Hon. Fast Track III Court, Palakkad except on 24-4-2013. The detenu was acquitted in this case on 24-4-2013. The case in Cr. No. 164/11 was posted for hearing on 20-2-2013 and 3-6-2013, the detenu has not appeared the Hon. JMFC III Court, Palakkad in these dates. The case in Cr. No. 517/12 was posted for hearing on 1-3-2013, 26-3-2013 and 6-6-2013 the detenu has not appeared the Hon. JMFC III Court, Palakkad in these dates. The detenu was arrested by CI of police, Hemambika Nagar on 21-6-2013. There is no inordinate and unreasonable delay between the date of the order of detention and the date of arrest of the detenu. There is no violation of the principles of the natural justice in executing arrest in pursuance of the detention order. Hence his contentions are baseless and false.

These averments in the counter-affidavit are not contradicted by a reply affidavit of the petitioner. Therefore, we have to proceed on the assumption that the averments in the counter-affidavit are accepted by the petitioner. If that be so, the conclusions that are possible are that on coming to know of the detention order issued against him, the detenu had absconded and attempted to sabotage the order by approaching this Court by filing W.P. (C) No. 6306/13. He had also consistently kept away from the Trial Court except appearing before it on 24-4-2013 to receive the judgment of acquittal in SC No. 201/10. In other words, he is a person who deliberately evaded from the process of law as indicted by the Apex Court in its judgment in Subhash Popatlal Dave''s case (supra). If that be so, as held by the Apex Court, it is not open to the petitioner now to contend that his fundamental right is in jeopardy. Therefore, we are not impressed by the contention of the learned counsel for the petitioner that there was any inordinate or unexplained delay in executing the order.

The second contention raised by the learned counsel was regarding the alleged delay in dealing with the representation made by the detenu. According to the learned counsel, the detenu made his representation u/s 7(3) of the Act on 6-7-2013 through the 6th respondent. His complaint was that the representation was forwarded by the 6th respondent only on 9-7-2013 and that the representation was received by the Government only on 16-7-2013. This representation was rejected by the Government by order dated 18-7-2013. Pointing out these facts, counsel contended that there is a delay of 10 days in his representation reaching the Government and there is a delay of 12 days in the Government passing the order on the representation. This according to the learned counsel is fatal to the detention and that therefore the detention has to be held unconstitutional. He also placed reliance on the Apex Court judgment reported in Vijay Kumar Vs. State of Jammu and Kashmir and Others, and the judgment of this court in Siji Martin v. State of Kerala 2012 (3) KLT 536.

However, according to the learned Government Pleader though the representation in question was dated 6-7-2013, the same was received by the 6th respondent only on 9-7-2013. She contended that the representation was dispatched to the Government on 10-7-2013 itself and that it was received by the Government on 16-7-2013 and rejected on 18-7-2013.

Since the contention that the representation dated 6-7-2013 was received by the 6th respondent only on 9-7-2013 was not clear from the pleadings in the counter-affidavit, we directed the learned Government Pleader to produce the materials to substantiate the same. Accordingly, she made available a copy of the letter dated 9-7-2013 of the 6th respondent forwarding the representation to the Additional Chief Secretary of the State Government and also to the Secretary of the Advisory Board. The seal on the letter also shows that the letter in question and its enclosures were dispatched on 10-7-2013. In this letter, it has been specifically stated that the representation of the detenu was submitted to his office on 9-7-2013. We have no reason to think that on 9-7-2013, the 6th respondent would have fabricated such a letter in order to answer the contention raised by the petitioner in this writ petition, which was filed only on 30-9-2013. Therefore, we accept the submission of the learned Government Pleader that the representation in question was received by the 6th respondent only on 9-7-2013 and that the same was dispatched on the next day itself viz., 10-7-2013.

If the representation was so dispatched on 10-7-2013, it was received by the Government on the sixth day even if the intervening Saturday and Sunday are not excluded. On such receipt, the Government passed the order rejecting the representation on the second day of its receipt. In this factual background, we shall now proceed to examine whether the judgments relied on by the learned counsel for the petitioner would support the contentions raised by him

In the judgment in Vijay Kumar Vs. State of Jammu and Kashmir and Others, what is relied on by the learned counsel for the petitioner is the principles laid down in paragraphs 11 and 12 of the judgment. In that judgment, what is highlighted by the Apex Court is the necessity of the Government to gear up its own machinery for the expeditious transmission of representations in order to ensure its immediate consideration.

In so far as the judgment of the Apex Court in Aslam Ahmed v. Union of India 2012 (3) KLT 536 is concerned, that was a case where there was eleven days delay in the transmission of the representation to the appropriate Government. In so far as the judgment of this Court in Siji Martin v. State of Kerala AIR 1989 S.C. 1403 is concerned, that was a case where there was ten days delay in forwarding the representation and ten days delay in considering the same. On facts, these cases are incomparable to the case of the petitioner. As already found by us, on receipt of the representation on 9-7-2013, it was dispatched to the Government on 10-7-2013 and on its receipt on 16-7-2013, order rejecting it was passed on 18-7-13. These facts do not disclose any delay either in dispatching the representation or in its disposal. Therefore, we are unable to accept the contention of the learned counsel.

In the result, we do not find any substance in the contentions raised by the petitioner.

Writ Petition is dismissed.