Sofi.S vs State Of Kerala

C. Jayachandran, J.

In this Writ Petition challenging Ext.P1 order of detention issued under the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P)A' for short), the petitioner is the wife of detenu's brother. As many as five crimes were considered by the Detaining Authority to issue Ext.P1, finding that the detenu is a 'Known Rowdy' and that preventive detention is quite necessary to curb his criminal propensity. By Ext.P2 order of confirmation, the Government directed continuance of detention for a period of six months.

Heard Sri.M.H.Hanis, learned counsel for the petitioner and Sri.K.A.Anas, learned Government Pleader, on behalf of the respondents.

Though Ext.P1 detention order was assailed on several grounds, we are of the opinion that the instant writ petition can be disposed of on one single  ground,  which  we  will  consider  in  detail here below:

Learned counsel for the petitioner contended that there is inordinate and unexplained delay between the last prejudicial activity and Ext.P1 detention order, which snaps the live link between the last crime and the purpose of detention. It was pointed out that the last crime reckoned was Crime no.1445/2022 of Eravipuram Police Station, the date of occurrence of which was 17.12.2022. Whereas, the detention order is dated 19.04.2023, that is to say, after the expiry of 123 days.

Learned Government Pleader, in answer to the above contention, urged that as a matter of fact, the last crime in which the detenu was involved was Crime no.43/2023 of Eravipuram Police Station. However, in the said crime, the defacto complainant had sworn to an affidavit before the trial court, indicating that he implicated the detenu in that crime acting upon a misconception, which fact is taken stock of in the order granting bail to the detenu. Accordingly, the said crime was excluded from consideration for the purpose of detention; nevertheless, the said crime, as also, the fact that the accused was in judicial custody from 07.01.2023 (date of arrest) upto 25.01.2023 (date of release on bail) is liable to be reckoned as an explanation for the delay, in the argument advanced by the learned Government Pleader.

Having considered the rival contentions, we are persuaded to accept the petitioner's contention. It is true that the present situation and the delay in initiating and concluding the proceeding for preventive detention is a direct consequence of excluding Crime no.43/2023 from consideration.

However, both the Sponsoring and Detaining Authorities are at tandem in  excluding the  said crime, wherefore, the last crime reckoned for the purpose of detention becomes Crime no.1445/2022. It is relevant to note that in the said crime, which occurred on 17.12.2022, the detenu was not arrested, but was only put on notice under Section 41 of Cr.P.C. The F.I.R in the said crime was registered on 21.12.2022. The proposal for preventive detention under Section 3(1) of KAA(P)A was preferred by the District Police Chief on 10.02.2023 only. Pursuant to a clarification sought for by the Detaining Authority as per letter dated 27.03.2023, the Sponsoring Authority preferred an additional representation on 03.04.2023. Ultimately, the detention order was issued only on 19.04.2023, with a delay of 123 days reckoned from the date of last prejudicial activity.

Even if we concede that the period during which the detenu was in judicial custody in connection with Crime no.43/2023 is liable to be excluded while considering the delay, the same is only for a period of 18 days commencing from 07.01.2023 (date of arrest) till 25.01.2023 (date of release). Excluding the said period of 18 days, still there is a delay of 105 days,  for  which,  no  explanation  is  forthcoming, except with reference to Crime no.43/2023. We are of the opinion that once Crime no.43/2023 is not liable to be reckoned, as admitted by the Detaining and Sponsoring Authorities, the explanation based on the said crime, excluding the one pertaining to the period of custody, cannot be legally accepted. The inevitable consequence is that there is inordinate and unexplained delay of 105 days atleast, which snaps the live link between the last prejudicial activity and the purpose of detention. We hold so.

We also notice serious non-application of mind on the part of the Detaining Authority and also the Sponsoring Authority. We may straight away refer to the letter dated 01.04.2023 (forming part of Ext.P1) issued by the Inspector of Police, Eravipuram Police Station to the District Police Chief (at running page no.53 of the paper book), where the Investigating Officer points out that the final report in Crime no.43/2023 has been filed, concluding that the accused (the detenu herein) was guilty of the offences alleged. If that be the situation, Crime no.43/2023 was not required to be excluded from consideration for the purpose of detention, dehors the affidavit said to have been filed by the defacto complainant. The authorities, both Detaining and Sponsoring, lost sight of the above salutary aspect, resulting in wrongful exclusion of the said crime, with a further consequence of snapping the live link between Crime no.1445/2022 and the order of detention.

In the above referred facts and circumstances, we find that the impugned Ext.P1 detention order and Ext.P2 confirmation order cannot be sustained. Accordingly, Exts.P1 and P2 are quashed. The detenu shall be released forthwith.