Ushamary vs State Of Kerala

A. Muhamed Mustaque, J.

The mother of the detenu is the petitioner in this case. This is the second detention order of the detenu. The detention order was passed on 25.03.2023. He is detained since 29.03.2023. Five cases were considered for passing the detention order. All the crimes were committed within the Anchalummoodu Police Station. The following are the details of the crime.

Sl.No.

Police Station

Crime No.

Offences

1

Anchalummoodu Police Station

1285/2018

332, 34 of IPC

2

Anchalummoodu Police Station

93/2019

341, 294(b), 324, 326 & 34 of IPC

3

Anchalummoodu Police Station

95/2020

294(b), 341, 323, 324, 23, 427, 506(i) & 34 of IPC

4

Anchalummoodu Police Station

206/2020

341, 323, 324, 308, 34 of IPC

5

Anchalummoodu Police Station

47/2021

294(b), 323, 324, 326, 34, 447 of IPC

6

Anchalummoodu Police Station

790/2022

294(b), 323, 324, 308, 34 of IPC

According to the petitioner, all the cases registered against the detenu are trivial nature and therefore, the order passed under the Kerala Anti-Social Activities Prevention Act, 2007 (for short “KAAPA Act”) is legally unsustainable. The learned counsel further argued that the mother of the detenu is undergoing treatment and she requires the presence of the detenu.

It is to be noted that this being a second detention order, only one case is required for passing the detention order. The sponsoring authority was prompt on submitting the report. The delay involved around two months has also been well explained in the order.

However, we note Section 12 of the KAAPA Act, which reads thus:

“Maximum Period of detention. - The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under section 10, shall not exceed six months from the date of detention.”

There is no mandate under law that in a subsequent detention order, a person should be detained for a period of maximum one year. The discretion is given to the detention authority to apply its mind to give maximum period of one year. Thus, the maximum period of one year will not be an imperative. The detaining authority must apply its mind with reference to the nature of offence committed while ordering the maximum period of one year. Merely because the offence would qualify for passing the detention order, it does not mean that a person should be detained for a maximum period of one year. It all depends upon the nature of offence, circumstances etc. There should be an application of mind on the part of detaining authority. We find that the detention order is perfectly valid except to the extent of imposing the maximum period of one year.

Taking note of the facts and circumstances that he has been detained for eleven months, we restrict the operation of the order till 20.02.2024 and the detenu is ordered to be released on 20.02.2024 forthwith, if his detention is not otherwise required under law.

This W.P.Crl. is disposed of as above.