Thanagal Kunju vs State Of Kerala And Ors

K. Vinod Chandran, J

An aggrieved father is before us raising contentions against the preventive detention of his son. The detenue was ordered to be detained under the

provisions of Kerala Anti-Social Activities (Prevention) Act, 2007 (for brevity “KAAPAâ€) by Ext.P1 order dated 17.12.2019. The actual

detention was made on 11.08.2020 after getting approval from the jurisdictional Court, which had remanded the detenue to judicial custody in Crime

No.1243 of 2019 registered by FIR dated 04.12.2019.

We heard Sri.Rajendran for the petitioner and Sri.Anas, learned Government Pleader on behalf of the State. Sri.Rajendran raised the following

grounds in support of the prayer to release the detenue from preventive detention. It is argued that under Section 10 of the KAAPA, though there is a

bar insofar as appearance of legal practitioners before the Advisory Board, the detenue has a valuable right to be heard in person. He was never

informed of that right nor was he given such right to appear in person and put forth his case. It is further argued that the detention as per Ext.P1 order

was after almost 9 months, in which period the detenue had not indulged in any crime. The detenue was also in station and the detaining authorities did

not think it fit to make his arrest for 9 months, especially when the preventive detention ordered was only for 6 months. There is no live link available

to detain him with such delay. Though the arrest is said to have been recorded on 11.08.2020, it is the submission of the detenue that he was actually

arrested on 08.08.2020 and produced before a Hospital, where he was detained till he tested negative for Covid 19. He was again kept in quarantine

till 16.09.2020, on which date alone he was produced before the Jail Authorities.

The approval of detention was made on 24.08.2020 beyond the period prescribed of 12 days from the date of detention, which was actually

08.08.2020. The continued detention in a Hospital and later, on quarantine prejudiced the detenue in making an effective representation. Further, it is

contended that the father of the petitioner, after taking legal advice, had sent a draft copy of the representation to be submitted before the Government

and the Advisory Board, produced at Exts.P15 & P16. The same was sent by registered post to the Superintendent, Central Prison, as is evidenced

from Ext.P17. The detenue asserts that the said copy of representations received by the Superintendent was torn off and the detenue was asked to

make a representation in his own hand. This had prejudiced him considerably for reason of compelling contentions taken in Exts.P15 & P16 having not

reflected in the handwritten representation. It is then argued that the bail orders in Crime Nos.833 of 2015 and 945 of 2018 were not enclosed with the

documents supplied to the detenue, nor were the conditions imposed therein considered by the detaining authority. Reliance is placed on Nalini v. State

of Kerala [2013 KHC 746], a Division Bench judgment of this Court. If the conditions in the bail order is violated, the Police could have moved the

appropriate Court for cancellation of bail, which was more than sufficient to detain the petitioner. Lastly it is argued that the Government has

mechanically considered the representation since the order rejecting it, is passed just a day after the order affirming the Advisory Board's opinion is

issued.

Learned Government Pleader asserts that the arrest was made only on 11.08.2020 and the detenue was taken from judicial custody as per the

order of the jurisdictional court. The approval order came on 24.08.2020 on the 12th day, and within the period provided under Section 12 of KAAPA;

which excludes public holidays in between. Due to the pandemic restrictions even Saturdays were holidays for Government Offices. The contention

that the detenue was taken first to a hospital is denied. Immediately on arrest, the entire documents were supplied to the detenue by the Station House

Officer, Ochira, who arrested him. Proof of service is available by way of acknowledgment of the petitioner available in the files produced before this

Court. It is pointed out that after arrest he was first taken to the Central Prison and Correctional Home, Thiruvananthapuram on the 11th itself and

then admitted to S.R. Medical College, Varkala for facilitating Covid testing on the very next day. Later, after reverse quarantine, the detenue was

brought to the Central Prison on 16.09.2020.

It is pointed out from the files that the detenue was informed of the legal assistance facilitated by the Superintendent of Central Prison on

12.08.2020 itself. With respect to his contention regarding the right to appear personally, it is argued that there was no request submitted expressing

his desire to be personally heard. In any event due to restrictions in force due to pandemic, a personal hearing was not possible and the Advisory

Board had permitted a legal practitioner to appear, who has also submitted argument notes before the Advisory Board. The representation as available

in the files, handwritten by the detenue is similar to that produced at Exts.P15 & P16. Though the matter was referred to the Advisory Board on

26.08.2020, the representation was forwarded to the Advisory Board, which was considered while passing the order affirming the detention order.

The delay in executing the detention order was only due to the petitioner having absconded. He also involved himself in Crime No.1243 of 2019 of

Ochira police Station, which incident occurred on 03.12.2019. Only when he surrendered in that crime on 03.08.2020, the whereabouts were known to

the Police, who immediately executed the detention order. There is no break of live link, especially when the detenue had committed a crime just prior

to the detention order and had absconded before and after that. The commission of the said crime also stands against the detenue in raising a

contention regarding the condition imposed in the bail order. Moreover, the bail order was specifically considered by the detaining authority. In

conclusion, it is argued that the representation of the petitioner was independently considered and that there was no reason to find any prejudice

having been caused to the detenue.

We have anxiously considered the contentions raised by the petitioner and the State. The detenue was arrested on 11.08.2020. The contention that

he was arrested on 08.08.2020 for the purpose of preventive detention cannot be believed for a moment, as the files reveal the official memorandum

issued by the JFCM Court, Karunagappally to the Sub Inspector of Police Ochira granting permission to effect the formal arrest of the accused

involved in Ochira Police Station Crime No.1243 of 2019 in connection with Ext.P1 detention order; based on which the arrest was effected on

11.08.2020. Before arrest he was in judicial custody. On arrest, as revealed from the files, the detenue was supplied with all the documents in support

of the order of preventive detention and acknowledgment received, by the Officer, who made the arrest [page 45]. The production of the detenue

before the Central Prison is also evidenced by the communication issued to the detenue by the Superintendent of Central Jail, Thiruvananthapuram

dated 12.08.2020, which also is acknowledged by the detenue [page 30]. The arrest having been made on 11.08.2020, the approval order passed on

24.08.2020 is within the time provided under Section 3(3) of KAAPA.

The delay in making a representation for reason of his hospitalisation and quarantine cannot be countenanced since the protocol was brought in due

to the extra-ordinary circumstance of the spreading pandemic. The further contention raised is with respect to an effective representation not having

been enabled before the Advisory Board for reason of the Superintendent having not permitted the detenue to sign on the draft copy forwarded by his

father, produced as Exts.P15 & P16. We perused the handwritten representation made by the detenue, available in the files at pages 309 to 318. We

have compared it with Exts.P15 & P16. The specific contention raised by the learned Counsel is that the grounds appearing in the last but two

paragraphs have not been addressed, which causes prejudice to the detenue. The last but second paragraph as per Ext.P15 is the ground raised on the

conditional bail orders in Crime No.833 of 2015 and 945 of 2018 having not been considered by the detaining authority. The last but one paragraph

contains the ground of the detenue having been taken after arrest straight to the quarantine centre, which disabled him from giving an effective

representation at the earliest point of time as per Article 22(5) of the Constitution of India. On comparing Exts.P15 & P16, with the handwritten

objection, we find those paragraphs having been included in the handwritten objection as the last but two paragraphs. What is missing is only the

contention in Exts.P15 & P16 in the last but one paragraph that the Jail Superintendent did not offer any assistance and that the detenue was not even

able to see the Jail Superintendent. Obviously, these are grounds supplied by the person who drafted Exts.P15 & P16, who had no contact with the

detenue before drafting the same. The said contention does not appear in the handwritten objection obviously because even according to the detenue,

the Superintendent tore off the draft objections and asked him to make a handwritten representation. The detenue hence was in the presence of the

Superintendent, when the objections were written. We find no reason to find any prejudice for reason of the Superintendent having not permitted the

detenue to merely put his signature in Exts.P15 & P16 representation before being forwarded to the Government and the Advisory Board. In fact on a

comparison of the documents we are sure that the handwritten objection was one copied out from the draft send by the detenue's father.

As to the contention regarding personal hearing, the Advisory Board had specifically informed the detenue by communication dated 24.09.2020 that

personal hearing is not practical due to COVID 19 pandemic restrictions. The detenue was allowed to furnish further details or arguments through the

Superintendent of Prison. The detenue is said to have sought for legal representation which was permitted. The Advocate filed a detailed argument

note before the Advisory Board along with the Vakalath executed by the detenue. We hence do not find any violation of the provisions of Section 7

nor is any prejudice caused to the detenue by denying permission to personally appear before the Advisory Board; which was also in the extra

ordinary circumstance of the regulations imposed due to the pandemic situation.

The next contention is with respect to the conditions in the bail orders having not been looked into by the detaining authority. The contention was

raised with respect to Crime Nos.833/2015 and 945/2018, both figuring along with others in support of the detention order. Before us the learned

Counsel for the detenue produced only the bail order in Crime No.945/2018. As far as Crime No. 833/2015; it is the oldest crime referred to in the

detention order. Whatever the conditions be, it has not deterred the detenue from continuously engaging in criminal activities as is evidenced from the

other crimes registered in the very same Police Station at Ochira. The bail order in Criminal MC filed in Crime No.945/2018 was passed on

17.04.2019, before the detention order dated 17.12.2019. However, after being released on bail, a crime was registered in the Ochira Police Station as

Crime No. 1243/2019 regarding an incident which occurred on 03.12.2019 under Sections 143, 147, 148, 294B, 322, 324, 355, 506 and 149 of IPC and

Section 27 of the Arms Act. The detention order has also considered the bail order and specifically found that the said order is not an effective

deterrent on the detenue who is a habitual offender.

We do not find any reason to interfere with the Government order affirming the opinion of the Advisory Board produced at Ext.P21. The Government

has also independently considered the representation filed by the petitioner by Ext.P18 dated 15.10.2020. The mere fact that the representation was

rejected one day after Ext.P21 order does not necessarily lead to a conclusion that the same was mechanical. We dismiss the writ petition. There is

no order as to costs.