IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HO NOURABLE MR. JUSTICE P.Q.BARKATH ALI THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WP(Crl.).No. 553 of 2009(S) ------------------------------------------------- PETITIONER(S): ---------------------- K.MOHANAN, S/O.KUNHI KRISHNAN, H.NO.VI/45, AKG NAGAR LAKSHAMVEEDU, KACHANI, THIRUVANANTHAPURAM. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P RESPONDENT(S): ------------------------- 1. SUB INSPECTOR OF POLICE, MEDICAL COLLEGE POLICE STATION, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF POLICE(L&O), THIRUVANANTHAPURAM. 3. THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADDL. D.G.P. SHRI K.K. RAVEENDRANATH GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL.).NO.553 OF 2009 S PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE ORDER SHEET IN C.C.NO.596/03 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. EXT.P2TRUE COPY OF THE ORDER SHEET IN C.C.NO.311/08 ON THE FILES OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM. EXT.P3TRUE COPY OF THE ORDER SHEET IN C.C.NO.292/08 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT V, THIRUVANANTHAPURAM. EXT.P4TRUE COPY OF THE ORDER OF DETENTION PASSED BY THE 3RD RESPONDENT DATED 17/09/2008. EXT.P5TRUE COPY OF THE MALAYALAM TRANSLATION OF EXHIBIT P2 SERVED ON THE PETITIONER'S SON. EXT.P6TRUE COPY OF THE REPORT DATED 23/08/2008 SUBMITTED BY THE 2ND RESPONDENT TO THE THIRD RESPONDENT. EXT.P7TRUE COPY OF THE REPORT SUBMITTED BY THE 1ST RESPONDENT TO THE ASSISTANT COMMISSIONER OF POLICE, SHANMUGHAM SUB DIVISION, SEEKING SANCTION TO OPEN ROWDY HISTORY SHEET AGAINST THE PETITIONER'S SON DATED 02/07/2008. EXT.P8TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT COMMISSIONER OF POLICE, SHANMUGHAM SUB DIVISION DATED 16/07/2008. EXT.P9TRUE COPY OF THE REPORT DATED 28/04/2009 SUBMITTED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT EXPLAINING AS TO WHY THE ORDER OF DETENTION COULD NOT BE IMPLEMENTED. EXT.P10 TRUE COPIES OF THE FIRs AND THE FINAL REPORT IN ALL THE FIVE CRIMES. EXT.P11 TRUE COPY OF THE ORDER APPROVING THE ORDER OF DETENTION PASSED BY THE 4TH RESPONDENT DATED 12/10/2009. EXT.P12 TRUE COPY OF THE ORDER CONFIRMING THE ORDER OF DETENTION DATED 12/12/2009 PASSED BY THE 4TH RESPONDENT. EXT.P13 TRUE COPY OF THE REPRESENTATION GIVEN BY THE PETITIONER TO THE ADVISORY BOARD. RESPONDENTS' EXHIBITS: EXT.R2(A) TRUE COPY OF THE PROCLAMATION IN OFFICIAL GAZETTE DATED 09.06.2009. EXT.R2(B) TRUE COPY OF G.O.(RT).NO.3617/2009/HOME, DATED 05.12.09. W.P.(CRL).NO.553 OF 2009 S EXT.R2(C) TRUE COPY OF CHECKING DETAILS OF THE DETENU BY THE 1ST RESPONDENT. EXT.R2(D) TRUE COPY OF THE INDEX OF DOCUMENTS SERVED ON THE DETENU ACKNOWLEDGED BY HIM. // True Copy // PS to Judge K. M. JOSEPH & P.Q. BARKATH ALI, JJ. -------------------------------------------------- W.P(CRL). NO. 553 OF 2009 S --------------------------------------------------- Dated this the 21st January, 2010 JUDGMENT K.M. Joseph, J. Petitioner is the father of one Shri Praveen, who has been detained under the Provisions of The Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). We heard the learned counsel for the petitioner and the learned Government Pleader. Two grounds alone are raised before us. 2. Firstly, it is contended by Shri R. Bindu Sasthamangalam that the link has been snapped by reason of the fact that while the order of detention (Ext.P4) is dated 17.09.2008, the detenu was arrested only on 1.10.2009. He would submit that the detenu far from absconding, was appearing in various cases, in fact, referred to in the order of detention. Secondly, he would contend that there is WP(CRL).553/09 S 2 transgression of mandate of Section 3(3) of the Act. He expands by contending that when an order is made under Section 3 of the Act by the Authorized Officer under Sub-section (2), he shall forthwith forward the fact to the Government and the Director General of Police, with a copy of the order and supporting records. In this case, it is pointed out that the order of detention and the records were forwarded only after the arrest. In this regard, he relies on the Judgment of a Division Bench of this Court in Soja Beegum v. Additional Chief Secretary to Government and Others (2009 (4) KHC 909). 3. Per contra, learned Government Pleader would, on the other hand, submit that there is no violation of Section 3(3) of the Act. He would submit that the order of approval need be passed only after the arrest. He would further contend that in the facts of this case, the link has not snapped by reason of the arrest being done only on 01.10.2009. In this connection, he would point out the steps which have been taken and the reasons WP(CRL).553/09 S 3 why the arrest could not be effected earlier. 4. Since we feel that the petitioner is entitled to succeed on the first point, we do not think it necessary to delve into the question whether there is a transgression of Section 3(3) of the Act and what is the effect of the breach of Section 3(3). 5. Admittedly, the order of detention was passed on 17.9.2008. It is not disputed either that the detenu was actually detained only on 1.10.2009. Petitioner has produced Exts.P1 to P3. They are Order Sheets in respect of cases relating to the crimes which are mentioned in the order of detention. Going by Ext.P1 order sheet in C.C.No.596/03 relating to Crime No.283/03, the detenu had appeared before the Additional Chief Judicial Magistrate Court, Thiruvananthapuram on 28.10.2008 and on 3.7.2009. Still further, going by Ext.P2 order sheet in C.C. No.311/08 which is relatable to Crime No.152/08 referred to in the order of detention, the detenu was present on 13.5.2009. No doubt, it is stated that the case was advanced on the said date (13.5.2009). Still further, Ext.P3 is the order sheet WP(CRL).553/09 S 4 relating to C.C.No.199/06 which is relatable to Crime No.356/05, which is referred to in Ext.P4 order of detention (C.C.No.199/06 was refiled as C.C.No.292/08). Ext.P3 would show that the detenu had surrendered on 12.3.2009. Thereafter, he was present before the Court on 23.4.2009, 8.6.2009 and on 24.7.2009. Despite the detenu appearing on the aforesaid dates, admittedly the arrest was effected only on 1.10.2009, ie. after more than one year of the order of detention. 6. Learned Government Pleader made an attempt to convince us that there was no inordinate delay. It is pointed out that the detenu was absconding. It is further pointed out that the second respondent informed the third respondent vide letter dated 28.4.2009 and requested to initiate action against the detenu under Section 6(2) of the Act, for the application of the provisions of Sections 82 to 86 of the Code of Criminal Procedure. It is stated further in the Counter Affidavit that the third respondent in compliance with the stipulations in Section 6 WP(CRL).553/09 S 5 (1)(a) of the Act, reported the matter before the Chief Judicial Magistrate, Thiruvananthapuram and proclamation was issued in respect of the detenu. It is also stated in the Counter Affidavit that the matter was published in the official gazette on 9.6.2009. Ext. R2(a) is the proclamation dated 9.6.2009. It is further stated that subsequent to the proclamation dated 15.5.09, the detenu failed to appear within the stipulated time and he remained at large and the Medical College Police along with the Special Branch Personnel continued their efforts to trace the detenu and received reliable information about his hide out and he was arrested from Kachani, Thiruvananthapuram on 01.10.2009. Learned Government Pleader also referred us to the communication produced as Ext.R2(c) which is said to be a communication from the Sub Inspector of Police, Medical College Police Station to the Deputy Commissioner of Police, Medical College Police Station. It reads as follows: “As per the order, all efforts have been made out to locate Praveen. Enquiries have been made at his residence & probable places of his visit. But, WP(CRL).553/09 S 6 knowing about detention order, he resisted himself from the vicinity of police. But, he appeared before the ACJMC, Tvpm on 28-10-2008, 03-07-2009, 20- 07-2009 in CC.596/09. On 28-10-2008, police could not be able to know his appearance as the case was adjourned on that day through notification. He was absent for the next two postings on 24-02-2009 and 17-03-2009 and appeared before the Court on 03-07-2009 and 20- 07-2009. During those days, PCS 1063, 1465, 1810 HC-9225 were deputed at the premises of the Court, but could not be traced. On 24-07-2009, I along with police party had gone to JFMC-V where he supposed to be appear in CC-292/08, but he purposefully evaded from the vicinity of the police. He was enquired at his residence at Chennilodu, but he could not be traced since he shifted his residence somewhere near Kachani at Vattiyoorkkavu. All this things are recorded in the GD concerned.” This is in short of the case of the learned Government Pleader. WP(CRL).553/09 S 7 7. Learned counsel for the petitioner would point out that in the first place, Ext.R2(c) is not dated. He would further point out that even going by the contents of Ext.R2(c), it is clear that the version that three Police Personnel were entrusted with the job of taking into custody of the detenu, which they failed in doing, could not be believed. In other words, it is submitted that even proceeding on the basis that the appearance of the detenu on 28.10.2008 is to be ignored, as the said date was ordered by notification, there is no basis at all to contend that the detenu could not be arrested on 3.7.2009 and on 20.7.2009. Still further, he would point out that the fact remains that the detenu had appeared before the Judicial Magistrate of First Class IV, Thiruvananthapuram itself in CC. No.199/06 on 22.4.2009, 8.6.2009 and on 24.7.2009. He would point out that this is after ignoring the appearance on 12.3.2009. In regard to the appearance in Ext.P2 order sheet, no doubt, he would point out that though he had appeared on the basis of the advancing of the case on 13.5.2009, the fact remains that the application for WP(CRL).553/09 S 8 advancing the case would have been served on the representative of the Government and if there was any earnestness in executing the order of detention, appropriate arrangements could have been made so as to take the detenu into custody. 8. We see force in the complaint of the learned counsel for the petitioner. An order of detention is passed in a jurisdiction of suspicion. It is premised on the imperative need to deprive of a person of his most precious right, namely liberty, so that the societal concern are addressed appropriately and a person is kept under detention. Any such order must be executed with the utmost expedition and the State and its machinery must be employed in a manner known to law for attaining that object at the earliest. In this case, we notice that though there is provision contained in Section 6 of the Act to get at persons who are absconding, the Report in this regard is made after nearly seven months of the order of detention. Acting on the said Report, notification was published in June, 2009 with further delay. All WP(CRL).553/09 S 9 this is done in a case where the detenu was very much available in Courts in the very same District in respect of cases which are referred to in the order of detention. We have already referred to the disturbing aspect of the three Policemen deputed to nab the detenu coming back empty handed. Time and again, Courts have highlighted the need for following up an order of detention with immediate implementation of the order by taking the detenu into custody. The State is armed with ample powers in this regard also. But, unfortunately, the fact remains that cases still come up as the present where the laudable object which is sought to be achieved by the Act is frustrated only for the reason that the Officers charged with the duty failed to imbibe the spirit of the legislation. In the facts and circumstances of this case, we feel that the petitioner is justified in his contention that the link has snapped. We are clearly of the view that the need for continued detention has snapped by virtue of the long lapse of time and inordinate delay with which the order of detention has been implemented. In such circumstances, we allow the writ WP(CRL).553/09 S 10 Petition and declare that the continued detention of the detenu, namely Shri Praveen, son of the petitioner, is illegal and we direct the respondents to set the detenu at liberty forthwith, unless his custody is wanted in any other case. Registry will forward a copy of this Judgment to the Superintendent of Jail, Thiruvananthapuram for implementation. Sd/= K.M. JOSEPH, JUDGE Sd/= P.Q. BARKATH ALI, JUDGE kbk. // True Copy // PS to Judge