Anita Antony vs State Of Kerala on 10 June, 2022

[Cites 15, Cited by 2]

Kerala High Court

Anita Antony vs State Of Kerala on 10 June, 2022

1. Ext.P3 detention order dated 25.01.2022 issued under Section 3 of the Kerala Antisocial Activities (Prevention) Act 2007 [for short, 'KAA(P)A'] is under challenge in this Writ Petition. As per the order impugned, petitioner's son, Jose Antony @ Kalan Jose, (detenu, for short) was directed to be detained in the Central Prison, Thiruvananthapuram for a period of one year.

2. Heard Smt.Sai Pooja, learned counsel for the petitioner and Sri.Anas, learned Government Pleader (attached to the Advocate General), on behalf of the respondents. Perused the records.

W.P.(Crl.)370/2022 3

3. Ext.P3 order is challenged by the petitioner on the following grounds;

(i) There is delay of 195 days from the date of last prejudicial activity (i.e. 14.07.2021 - the date on which FIR was registered in the last crime bearing No.460 of 2021 of Alappuzha North Police Station) and the date of Ext.P3 order (25.01.2022), thereby severing the live link between the two. The delay is substantial, which is not explained. Even a delay of 4 months was held to be fatal by a Division Bench of this Court in Abhida Beevi v State of Kerala & Others [2013 (1) KLT 286]

(ii). All conditions stipulated in the order granting bail in the last crime (Crime No.460 of 2021 of Alappuzha North Police Station) was scrupulously followed by the detenue, wherefore, the subjective satisfaction arrived at by the second respondent/District Magistrate - to the effect that there is no way, except a detention order, to restrain the detenue from indulging in unlawful activities - smacks of total non application of mind.

(iii). All the crimes registered against the detenue are within the limits of Alappuzha District, wherefore, the feasibility of achieving W.P.(Crl.)370/2022 4 the purpose by resorting to section 15 of the Act was not considered by the second respondent.

(iv). No crime was committed by the detenue for a period of six months, when proceedings dated 10.04.2019 was initiated under Section 107 CrPC. In such circumstance, it should have been found by the second respondent that proceedings under section 107 Cr.P.C would have been amply sufficient to prevent the detenue from indulging in any crime.

(v). Out of the four crimes considered, two are cases instituted suo moto on the complaints of police officers, the reckoning of which is bad in law, in view of the specific exclusion made in the definition of 'known rowdy' in S.2(p) (iii). Learned counsel also referred to certain aspects touching the merits of four cases reckoned for the purpose of detention, which we are not detailing here, for, the same is not germane for consideration within the scope of the present proceedings. On the above enumerated grounds, learned counsel contended that Ext.P3 order impugned is not sustainable in law. W.P.(Crl.)370/2022 5

4. Refuting the above allegations, learned Government Pleader invited our attention to the two counter affidavits filed by respondents 1 and 2, based upon which, it was contended as follows:

The delay of 195 days between the date of last prejudicial activity and the date of detention order is properly explained in paragraph no.24 of Ext.P3 detention order. The fact that the detenu was in judicial custody; that recommendation for preventive detention was made prior to his release on bail; and that the District Magistrate/District Collector was fully pre-occupied in taking steps to contain the spread of Covid-19 pandemic were espoused to answer the delay.

5. Learned Government Pleader submitted that the bail conditions in Crime No.460 of 2021 would not fetch the desired result, since similar conditions in the bail orders in earlier crimes did not deter the detenu from committing subsequent crimes. W.P.(Crl.)370/2022 6

6. Recourse to remedy under Section 15 of the KAA(P)A was not feasible because of the gravity of the offences involved. In the last crime, the detenu, who is the first accused, trespassed into the house of a 51 year old man and caused grievous hurt. Two cases are under the NDPS Act, wherein both drugs and ganja are contrabands seized. Offences under the said Act are to be viewed seriously since it has the potential of affecting both the physique and psyche of the youth, submits the learned Government Pleader.

7. The sufficiency of proceedings under Section 107, Cr.P.C, was specifically considered and negated by the 2nd respondent/District Magistrate as could be seen from the discussion in page nos.10 and 15 of Ext.P3 order. Learned Government Pleader also contented that the relative scope of a proceeding under Section 107 Cr.P.C and the instant proceedings under the KAA(P)A are different altogether. W.P.(Crl.)370/2022 7

8. Finally, learned Government Pleader submitted that in cases where the police personnel were attacked, the bar/exclusion in the definition of 'known rowdy' of cases initiated by police officers will not apply, as held in Joicy v State of Kerala [2018 (1) KHC 37].

9. Having heard the learned counsel appearing on both sides, we find considerable force in the submission made by the learned Government Pleader, so as to sustain Ext.P3 detention order. Though there is a delay of 195 days between the last prejudicial activity [15.07.2021] and the date of detention order [25.01.2022], we notice that the same has been satisfactorily explained by virtue of the contents of paragraph no.24 of the impugned order/Ext.P3, as also, in the counter affidavits filed on behalf of respondents 1 and 2. As regards the last crime, FIR was registered on 15.07.2021 and the detenu was W.P.(Crl.)370/2022 8 arrested on 17.07.2021. He was in judicial custody until 18.10.2021, on which date, he was released on bail. It is relevant to note that, even before the detenu's release on 18.10.2021, the third respondent preferred his first report dated 16.09.2021, recommending preventive detention of the petitioner. The detaining authority, presumably after perusing the available materials, sought for clarification/ further information regarding bail and bail conditions. We find the information sought for quite necessary, as otherwise, the contention would have been that the sufficiency of bail conditions was not considered by the detaining authority. Accordingly, the third respondent/District Police Chief preferred his second report on 02.12.2021 incorporating the details of the bail order, as also, the final report filed on 12.10.2021. It is relevant to note that the detenu was in judicial custody for a period of more than 90 days, from 17.07.2021 to 18.10.2021. During the period from 18.10.2021 up to the date of the W.P.(Crl.)370/2022 9 impugned order, 25.01.2022, there were 78 days, of which, 20 days were holidays. The above referred aspects, coupled with the serious pre-occupation of the second respondent/District Collector in containing the spread of COVID-19 SARS virus offer adequate explanation to the delay alleged. The petitioner's contention in this regard based on Abhida Beevi (supra) is not tenable, for, the said decision is clearly distinguishable on facts. In that case, there was a delay of more than 4 months, which was not explained at all, either in the impugned order or in the counter affidavit filed. What was held fatal is the unexplained and inordinate delay.

10. In Licil Antony v. State of Kerala and Another [2014(11) SCC 326], the Honourable Supreme Court observed thus as regards delay in making the detention order :

"9. While dealing with the question of delay in making an order of detention, the Court is required to be circumspect and has to take a W.P.(Crl.)370/2022 10 pragmatic view. No hard - and - fast formula is possible to be laid or has been laid in this regard. However, one thing is clear that in case of delay, that has to be satisfactorily explained. After all, the purpose of preventive detention is to take immediate steps for preventing the detenue from indulging in prejudicial activity. If there is undue and long delay between the prejudicial activity and making of the order of detention and the delay has not been explained, the order of detention becomes vulnerable. Delay in issuing the order of detention, if not satisfactorily explained, itself is a ground to quash the order of detention. No rule with precision has been formulated in this regard. The test of proximity is not a rigid or a mechanical test. In case of undue and long delay, the Court has to investigate whether the link has been broken in the circumstances of each case.

18. Even in a case of undue or long delay between the prejudicial activity and the passing of detention order, if the same is satisfactorily explained and a tenable and reasonable explanation is offered, the order of detention is not vitiated."

(Underlined by us for emphasis).

The legal position in this regard was settled earlier by the Hon'ble Supreme Court in T.A. Abdul Rahman v W.P.(Crl.)370/2022 11 State of Kerala [(1989)4 SCC 741].

11. As held in Licil Antony (supra), the test of proximity is not a rigid or a mechanical test. On the facts above referred, we find a tenable and reasonable explanation offered by the respondents, wherefore, the order of detention cannot be held to be vitiated on account of delay.

12. The second contention is a claim that the detenu had scrupulously followed the bail conditions in the last crime [Crime No.460 of 2021 of Alappuzha North Police Station] and therefore, the subjective satisfaction to initiate proceedings under the KAA(P)A is vitiated. We cannot endorse the said submission of the learned counsel. As rightly pointed out by the learned Government Pleader, the last prejudicial activity reckoned by the detaining authority is the fourth crime and in all previous crimes, while being enlarged on bail, the detenu was W.P.(Crl.)370/2022 12 put on similar condition that he shall not indulge in any criminal activity while on bail. This condition has been contemptuously violated by the detenu, as is established by the subsequent crimes, including the last one of the year 2021. Therefore, we are of the opinion that the compliance with the bail condition in the last crime cannot be gainsaid by the detenu, to assail the subjective satisfaction of the detaining authority, which is otherwise established by materials on record.

13. The third contention is with respect to the feasibility of the remedy under Section 15 of the KAA(P)A in preference to the one under section 3 of the Act. Here, we notice the distinction between the two provisions based on the gravity of the attendant facts and circumstances, as also, the criminal propensity of the offender. We note that, there were six cases against the detenu in the past 7 years, of which, two were not reckoned for the purpose of the W.P.(Crl.)370/2022 13 instant detention. We also note that the detenu had indulged in serious offences as could be seen from the tabular statement shown here.



Sl. Police Station      Date &        Offence   Stage    Court
No. and Crime No.       Time
1     Alappuzha North   28.05.2015 U/s.294(b), Pending   SC-
      705/2015          at         324, 307,   Trial     684/2016
                        19.30Hrs. 302 & 34 of            Adl &
                                   IPC                   Dist.
                                                         Sessions
                                                         Court,
                                                         Alappuzha
2     Alappuzha North   04.09.2017 U/s.294(b)0 Pending   SC-
      1574/2017                    0, 341,     Trial     279/2018
                                   324, 332,             Adl &
                                   506ii, 308            Dist.
                                   of IPC &              Sessions
                                   U/s.20 r/w            Court,
                                   Sec.27 of             Alappuzha
                                   Arms Act &
                                   U/s,3(2)(3)
                                   of PDPP Act

3     Alappuzha North   18.10.2018 8(c), 22(b) Pending   SC-
      1930/2018         at         & 29 of     Trial     1930/2018
                        15.45Hrs. NDPS Act               Adl &
                                                         Dist.
                                                         Sessions
                                                         Court-
                                                         III,
                                                         Alappuzha
4     Alappuzha North   14.07.2022 U/s143,     Charge    JFMX-1
      460/2021          at         144, 147,   Sheet     Alappuzha
                        22.30Hrs. 148, 149,    filed
                                   452, 324,
                                   326, 307 of
                                   IPC
 W.P.(Crl.)370/2022
                                       14

In the first crime, the offence involved includes the one under Section 302 and in the second, Section 308. The third one is with respect to the NDPS Act and the fourth is with respect to offence under Section 307 of the Penal Code. The report of the third respondent/District Police Chief is to the effect that the detenu is a potential threat to the law abiding citizens in the locality. In such circumstance, we cannot find fault with the detaining authority in electing the remedy under Section 3, as against the one under Section 15 of the KAA(P)A. We also find that the choice in this regard is a matter of discretion based on subjective satisfaction of the detaining authority and the detenu cannot lay any claim as regards the desirability of one choice in preference to the other; nor can we interfere in such discretion properly exercised or find fault thereof.

14. As regards the contention based on Section 107, Cr.P.C, we would first refer to the Bench W.P.(Crl.)370/2022 15 decision in Abhida Beevi (supra), wherein it is held as follows:

"Whether the proceedings under S.107 of Cr.P.C. are sufficient or not is a question of fact depending upon various factors. In the case of certain persons, the proceedings under S.107 of Cr.P.C. may be sufficient for preventing them from committing anti-social activities causing breach of peace or disturbing public tranquillity. In respect of certain other persons, the proceedings under S.107 of Cr.P.C. may not be sufficient. One thing is quite certain.

          Unless             the        detaining               authority
          specifically              addresses           the      question

whether the proceedings under S.107 of Cr.P.C. initiated against a person are sufficient or not in the light of the materials concerning those proceedings produced before that authority, the question whether the proceedings under S.107 of Cr.P.C. are sufficient or not cannot be decided(sic)."

Now, we will refer to page no.10 of the impugned W.P.(Crl.)370/2022 16 order/Ext.P3, where the relevant conclusion of the 3rd respondent, as taken note of by the 2nd respondent, is extracted herein below:

"3) എതതിർ കകതി ആയ ജജജോസ് ആൻ്്റണതി @ കജോലൻ ജജജോസ് നതിരന്തരരം സമജോധജോനലരംഘനപപ്രവർത്തനങ്ങൾ നടത്തതി വന്നതതിനന തതുടർന്ന് ടതിയജോനനതതിനര ആലപപ്പുഴ ജനജോർത്ത് ജപ്രജോലലീസ് ജസ്റ്റേഷൻ കപകരം.2171/2018 Us.107 Cr.P.C പപ്രകജോരരം ജകസ് രജതിസ്റ്റേർ നചെയതതിടപ്പുള്ളതതുരം ടതി ജകസ് ബഹതു. ആലപപ്പുഴ എസ്.ഡതി.എരം.സതി മതുമജോനക എസ്.സതി. 604/2018 നമറജോയതി വതിചെജോരണയതിലതിരതുന്നതതുരം തതുടർന്ന് എതതിർകകതി 10.04.2019 തലീയതതി ബഹതു. ജകജോടതതിയതിൽ ഹജോജരജോയതി 06 മജോസകജോലജത്തക് നലല്ലനടപ് ജജോമമ്യത്തതിന് ജബജോണ് എകസതികമ്യക്യൂട് നചെയതതിടപ്പുള്ളതതുമജോണ. എന്നജോൽ ടതി ജബജോണ് വച്ചതതിനതു ജശേഷവതുരം എതതിർകകതി ടതി മതുൻകരതുതൽ നടപ്രടതികൾക് യജോനതജോരതു വതിലയതുരം കൽപതികജോനത തതുടർന്നതുരം ആലപപ്പുഴ ജനജോർത്ത് പ്രതി.എസ് കപകരം 460/2021 U/s.143, 144, 147, 148, 149, 452, 324, 326, 307 IPC പപ്രകജോരമതുള്ള വധപശേമ ജകസതിൽ പപ്രതതിയജോയതിടപ്പുള്ളതജോണ.

എതതിർകകതി ചെതുരതുങ്ങതിയ കജോലയളവതിനതുള്ളതിൽ നകജോലപ്രജോതകരം, വധപശേമരം, മയകതുമരതുന്ന് കകവശേരംവയകൽ, കഠതിന ജദേജഹജോപ്രപദേവരം ഏലപ്രതികൽ തതുടങ്ങതിയ 6 പകതിമതിനൽ ജകസപ്പുകളതിൽ പപ്രതതിയജോയതിടപ്പുള്ളതതിനജോൽ 107 സതി.ആർ.പ്രതി.സതി ജകസപ്പുരം അനതുബന്ധ നടപ്രടതികളപ്പുരം ടതിയജോൻനറ ജമൽവതിവരതിച്ച പപ്രകജോരമതുള്ള അപകമ പപ്രവർത്തനങ്ങളതിൽ നതിന്നതുരം ടതിയജോനന പ്രതിൻതതിരതിപതികജോൻ പ്രരമ്യജോപതമലല്ല എന്നതുരം, 107 Cr.P.C ജപ്രജോനലയതുള്ള മതുൻകരതുതൽ നടപ്രടതികൾക് വതിജധയനജോയതി കതുറ്റകകൃതമ്യങ്ങളതിൽ നതിന്നതുരം പ്രതിൻതതിരതിയതിനലല്ലന്നതുരം ടതിയജോൻ തതുടർന്നതുരം ഗഗൗരവതരമജോയ കതുറ്റകകൃതമ്യങ്ങളതിൽ ഏർനപടതുനമന്ന് ഉത്തമ ജബജോധമ്യരം വന്നതിടപ്പുള്ളതജോയതുരം, ആയതതിനജോൽ ടതിയജോനനതതിനര KAA(P)A നതിയമരം 3(1) പപ്രകജോരമതുള്ള നടപ്രടതികൾ സസലീകരതിജകണത, നപ്രജോതതുജന സമജോധജോന ജലീവതിതത്തതിന് അതമ്യന്തജോജപ്രകതിതമജോനണന്ന് subjective satisfaction ഉണജോയതതിനജോലതുമജോണ ടതിയജോനനതതിനര നതിലവതിൽ നടപ്രടതിയകജോയതി ശേതുപ്രജോർശേജോ റതിജപജോർട് W.P.(Crl.)370/2022 17 സമർപതികതുന്നനതന്നതുരം ജതിലല്ലജോ ജപ്രജോലലീസ് ജമധജോവതിയതുനട റതിജപജോർടതിൽ പപ്രതതിപ്രജോദേതിച്ചതിരതിയകതുന്നതു. "

This recommendation is seen considered by the 2nd respondent/District Magistrate at page no.15 of Ext.P3 and his subjective satisfaction is also recorded. The consideration made by the Detaining Authority is very much evident from the extract in vernacular, herein above. The fact that, the detenu had indulged in 6 crimes [although four crimes alone were reckoned for the purpose of proceedings under the KAA(P)A], which includes crimes after initiation of proceedings under Section 107, Cr.P.C, as well, would establish that proceedings under Section 107 is not sufficient to restrain the petitioner from indulging in further crimes. We cannot, but approve the subjective satisfaction arrived at by the detaining authority based on the recommendation of the sponsoring authority. In adopting the above view, we garner strength from a Division Bench judgment of this Court in Thejas v I.G. of Police [2015 (3) W.P.(Crl.)370/2022 18 KLT 1].

15. That apart, the relative scope of the two proceedings are different and independent. Proceedings under Section 107, Cr.P.C, is in the nature of security for keeping peace and public tranquility. After issuing show cause, the Executive Magistrate can order the suspected person to execute a bond to keep peace for such period not exceeding one year. The free movement of such person is not curtailed at all. Apprehension with respect to breach of peace or disturbance of public tranquility is the criteria for initiating a proceeding under Section 107, Cr.P.C. This is a lesser remedy, just to ensure peace and public tranquility, to be applied in the case of lesser criminals and not hardened ones. We note the remedy under Section 110, Cr.P.C, for habitual offenders, where, again, the course open is execution of a bond for a period not exceeding three years. Whereas, the remedy under Section 3 of the W.P.(Crl.)370/2022 19 KAA(P)A is a larger and serious remedy, where the suspect is put to preventive detention for a period of six months or one year, as the case may be. For this, the detaining authority should be satisfied of the various parameters, including the in-built safeguards as contained in the definition of a 'known goonda' or 'known rowdy'. As it is well settled, preventive detention is a harsher remedy, whereby the life and liberty of a person is at stake even without a formal trial to adjudicate his guilt. Needless to say that such remedy is to be applied in the case of hardened criminals, where the interests of the public at large outweighs individual liberty. The requirements while curtailing individual liberty is considered and reflected in the definition of 'known goonda' and 'known rowdy'. We are, therefore, of the opinion that the feasibility, if any, of the proceedings under section 107, Cr.P.C, is not an alternative for a proceeding under Section 3 of the KAA(P)A. W.P.(Crl.)370/2022 20

16. Now, we come to the final contention that two crimes initiated by police officers should not have been reckoned. One is a case where two police officers were attacked to deter them from performing their official duties and a police jeep was gutted. The other is a case of chance detection of narcotic drug from the possession of the detenu, along with two others, under the NDPS Act. The legal position in this regard is no more res integra. As regards the former, a Bench decision of this Court in Joicy (supra) and as regards the latter, Ansar T.A v State of Kerala and Others [2017(2) KHC 413] are the answers. We are in respectful agreement with the dictum laid down therein. In as much as the petitioner's contention is squarely in the teeth of the said decisions, we reject the same.

17. We are satisfied that the detenu's facts answer the definition of 'known rowdy' as per Section 2(p) W.P.(Crl.)370/2022 21

(iii) of the KAA(P)A. Ext.P3 is issued after complying with all procedural requirements stipulated. The grounds of challenge are repelled, with the result, this Writ Petition will stand dismissed.

Sd/-

K.VINOD CHANDRAN JUDGE Sd/-

C.JAYACHANDRAN JUDGE Sbna/jg W.P.(Crl.)370/2022 22 APPENDIX OF WP(CRL.) 370/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE UNDATED REPORT SUBMITTED BY THE RESPONDENT NO.3 BEFORE THE RESPONDENT NO.2 Exhibit P2 TRUE COPY OF THE REPORT DATED 02.12.2021 SUBMITTED BY THE RESPONDENT NO.3 BEFORE THE RESPONDENT NO.2 Exhibit P3 TRUE COPY OF THE DETENTION ORDER DATED 25.01.2022 PASSED BY THE RESPONDENT NO.2 Exhibit P4 TRUE COPY OF THE REASONS FOR THE DETENTION DATED 25.01.2022 RECORDED BY THE RESPONDENT NO.2 Exhibit P5 TRUE COPY OF THE ORDER DATED 22.03.2022 PASSED BY THE RESPONDENT NO.1 Exhibit P6 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.705/2015 OF ALAPPUZHA NORTH POLICE STATION Exhibit P7 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1574/2017 OF ALAPPUZHA NORTH POLICE STATION.

Exhibit P8 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.1930/2018 OF ALAPPUZHA NORTH POLICE STATION.

Exhibit P9 TRUE COPY OF THE SEIZURE MAHAZAR IN CRIME NO.1930/2018 OF ALAPPUZHA NORTH POLICE STATION Exhibit P10 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.460/2021 OF ALAPPUZHA NORTH POLICE STATION Exhibit P11 TRUE COPY OF THE WOUND CERTIFICATE DATED 15.07.2021 ISSUED FROM THE GENERAL HOSPITAL ALAPUZHA.

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