Kerala High Court
Aswathy R.S vs State Of Kerala on 20 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:63305
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
WEDNESDAY, THE 20TH DAY OF AUGUST 2025/29TH SRAVANA, 1947
WP(CRL.) NO. 111 OF 2025
PETITIONER:
ASWATHY R.S., AGED 33 YEARS,
W/O UDAYADAS, CHARUVILA PUTHEN, THAZHAM NORTH,
CHATHANOOR, KOLLAM,, PIN - 691572
BY ADVS.
SHRI.M.H.HANIS
SMT.T.N.LEKSHMI SHANKAR
SMT.NANCY MOL P.
SHRI.ANANDHU P.C.
SMT.NEETHU.G.NADH
SMT.RIA ELIZABETH T.J.
SMT.SINISHA JOSHY
SHRI.SAHAD M. HANIS
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE ADDITIONAL
CHIEF SECRETARY TO GOVERNMENT, HOME AND
VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE,
CIVIL STATION, KOLLAM DISTRICT, PIN - 691013
3 THE DISTRICT POLICE CHIEF,
KOLLAM, KOLLAM DISTRICT,, PIN - 691001
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2025:KER:63305
4 THE CHAIRMAN, ADVISORY BOARD, KAAPA,
SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR,
ELAMAKKARA, ERNAKULAM DISTRICT, PIN - 682026
5 THE SUPERINTENDENT OF JAIL,
CENTRAL JAIL, VIYYUR, THRISSUR DISTRICT, PIN
- 670004
SRI. K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 20.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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2025:KER:63305
JUDGMENT
Jobin Sebastian J.
This writ petition has been directed against an order of detention dated 28.10.2024 passed against one Vineesh @ Bellak under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAA(P) Act' for brevity). The petitioner herein is the sister of the detenu. The detention order stands approved by the Government vide order dated 18.01.2025 and the brother of the petitioner has been ordered to be detained for a period of one year from the date of execution of the order.
2. The records available before us disclose that a proposal was submitted by the District Police Chief, Kollam city, on 18.09.2024, seeking initiation of proceedings under Section 3(1) of the KAA(P) Act before the jurisdictional authority. For the purpose of initiation of the said proceedings, the detenu was classified as a 'known rowdy' as defined under Section 2p(iii) of the KAA(P) Act.
3. Altogether, seven cases in which the detenu got involved were considered by the detaining authority for issuing Ext.P1 order of detention. Out of the said cases, the case registered with respect to the last prejudicial activity is crime No.785/2024 of Chanthannur Police Station alleging the commission of offences punishable under Sections 118(1), 296(b), 333, 74 r/w 3(5) of Bharatiya Nyaya Sanhita WP(Crl.) No.111/2025 :: 4 ::
2025:KER:63305 (for short "BNS") and the detenu is arrayed as the 1st accused in the said case.
4. We have heard Sri. M.H. Hanis, the learned counsel appearing for the petitioner, and Sri. K.A. Anas, the learned Government Pleader.
5. The learned counsel for the petitioner would submit that the impugned order is vitiated, as the same is passed without proper application of mind and disregarding the procedural safeguards envisaged in the KAA(P) Act. According to the counsel, there is an inordinate delay in mooting the proposal by the sponsoring authority, as well as in passing the impugned order by the competent authority after the last prejudicial activity. It is pointed out that the said delay in forwarding the proposal and passing the detention order will snap the live link between the last prejudicial activity and the purpose of detention. The learned counsel urged that, if the sponsoring authority was having any bonafide apprehension regarding repetition of criminal activities by the detenu, the authority would have acted on a war footing in making the proposal for initiation of proceedings under KAA(P) Act, particularly when the detenu was allegedly absconding after the commission of the last prejudicial act.
6. In response, Sri. K.A. Anas, the learned Government Pleader, asserted that there is no unreasonable delay either in WP(Crl.) No.111/2025 :: 5 ::
2025:KER:63305 submitting the proposal or in passing Ext.P1 detention order after the last prejudicial activity. However, some minimal delay is inevitable while passing a detention order, especially when the authority has to ensure adherence to the natural justice principles while passing such an order. The learned Government Pleader pointed out that a hasty action under KAA(P) Act is not at all desirable, especially when an order of detention has a heavy bearing on the personal and fundamental rights of a citizen. According to the learned Government Pleader, the detaining authority passed Ext.P1 order after arriving at the requisite objective as well as subjective satisfaction, and no interference is warranted.
7. We have carefully considered the submissions advanced and have perused the records.
8. From a perusal of the records, it can be seen that the recurrent involvement of the detenu in criminal activities necessitated the initiation of proceedings under KAA(P) Act against the detenu. Seven cases in which the detenu got involved formed the basis for passing the impugned order of detention. Out of the said case, the case registered with respect to the last prejudicial activity is crime No.785/2024 of Chanthannur Police Station, alleging the commission of offences punishable under Sections 118(1), 296(b), 333, 74 r/w 3(5) of BNS. The detenu who is arrayed as the 1st accused in the said case was not arrested as he allegedly absconded after the commission of WP(Crl.) No.111/2025 :: 6 ::
2025:KER:63305 the said offence. It was while he was absconding, the proposal for initiation of proceedings under KAA(P) Act was initiated as well as the detention order was passed. As already stated, the sponsoring authority mooted the proposal for action under the KAA(P) Act on 18.09.2024. Therefore, it is demonstrably clear that there is a delay of 45 days in mooting the proposal after the commission of the last prejudicial activity.
9. While considering the contention of the petitioner, regarding the delay that occurred in submitting the proposal for detention and in passing the order, it cannot be ignored that an order under Section 3(1) of KAA(P) Act has a significant impact on the personal as well as fundamental rights of an individual. So such an order could not be passed in a casual manner instead, it can only be passed on credible materials after arriving at the requisite objective and subjective satisfaction. Furthermore, there exists no inflexible rule requiring a detention order to be issued within a specific time frame following the last prejudicial act. However, when there is undue delay in making the proposal and passing the detention order, the same would undermine its validity, particularly when no convincing or plausible explanation is offered for the delay.
10. In T.A.Abdul Rahman v. State of Kerala, [1990 SCC Cri 76], the Apex Court held that the question whether the prejudicial activities of a person necessitating to pass an order of detention is proximate to the time when the order is made or the live link between WP(Crl.) No.111/2025 :: 7 ::
2025:KER:63305 the prejudicial activities and the purpose of detention is snapped depends on the facts and circumstances of each case. No hard and fast rule can be precisely formulated that would be applicable under all circumstances, and no exhaustive guidelines can be laid down on that behalf. It follows that the test of proximity is not a rigid or mechanical test by merely counting the number of months between the offending acts and the order of detention. However, when there is an undue and long delay between the prejudicial activities and the passing of the detention order, the court has to scrutinize whether the detaining authority has satisfactorily examined such a delay and afforded a tenable and reasonable explanation as to why such a delay has occasioned when called upon to answer and further the court has to investigate whether the causal connection has been broken in the circumstances of each case.
11. Keeping in mind the above principles, while reverting to the facts in the present case, it can be seen that no convincing explanation whatsoever has been offered for the delay of 45 days that occurred in mooting the proposal in this case. Moreover, it is evident that after the commission of the last prejudicial activity, the detenu who is arrayed as the 1st accused in the said case absconded. Curiously, in the impugned order itself, it is admitted that there occurred some delay in forwarding the proposal. Although it is true that the accused was absconding after the commission of the last prejudicial activity, there is no legal impediment in initiating WP(Crl.) No.111/2025 :: 8 ::
2025:KER:63305 proceedings under KAA(P) Act against an accused who had absconded after the last prejudicial activity. On the other hand, when the accused is neither apprehended nor in custody in connection with the last prejudicial activity, the sponsoring authority should have been more vigilant to take quick action to initiate proceedings under KAA(P) Act, especially when the accused is qualified to be booked under the said Act.
12. If the Superintendent of Police who mooted the proposal was having bonafide apprehension regarding the repetition of anti- social activities by the detenu, definitely he would have acted swiftly after the last prejudicial activity. In the case at hand, as already stated, there is a delay of 45 days in mooting the proposal for the detention order. Therefore, nobody could be blamed if it is found that the live link between the last prejudicial activity and the purpose of detention is snapped. The delay of 45 days in mooting the proposal itself shows that the proposed officer did not have any genuine apprehension regarding the immediate repetition of criminal activities by the accused.
13. The assertion of the learned Government Pleader that additional time was needed to gather the details of the crimes before forwarding the proposal lacks credibility. In the case at hand, seven cases formed the basis for proposing and issuing the detention order. The details of those cases were readily available and could have been WP(Crl.) No.111/2025 :: 9 ::
2025:KER:63305 obtained without delay, given the technological upgradation attained by the law enforcement authority. Therefore, we are of the considered view that the delay in mooting the proposal is unreasonable and unjustifiable. If the true objective was to prevent the detenu from engaging in anti-social activities, the authority ought to have acted with greater alacrity in submitting the proposal and issuing the consequent order. Therefore, the only conclusion that can be arrived at is that the live link between the last prejudicial activity and the purpose of detention has been snapped.
14. In the result, this Writ Petition is allowed, and Ext.P1 order of detention is set aside. The Superintendent of Central Prison, Viyyur, Thrissur is directed to release the detenu, Sri. Vineesh @ Bellak forthwith, if his detention is not required in connection with any other case.
The Registry is directed to communicate the order to the Superintendent of Central Prison, Viyyur, Thrissur forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR JUDGE Sd/-
JOBIN SEBASTIAN
JUDGE
ncd
WP(Crl.) No.111/2025 :: 10 ::
2025:KER:63305
APPENDIX OF WP(CRL.) 111/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF ORDER NO.
DCKLM/9517/2024-M-16 DATED 28.10.2024
OF THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE REPRESENTATION
DATED 18.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT
Exhibit P3 A TRUE COPY OF THE ACKNOWLEDGMENT
CARD RECEIPT EVIDENCING THE RECEIPT
OF EXT P2 ON 20.12.2024
Exhibit P4 A TRUE COPY OF THE REPRESENTATION
DATED 18.12.2024 SUBMITTED BY THE
PETITIONER BEFORE THE 4TH RESPONDENT
Exhibit P5 A TRUE COPY OF THE ACKNOWLEDGMENT
CARD RECEIPT EVIDENCING THE RECEIPT
OF EXT P4 ON 19.12.2024