Allowed

Jijo Thankachan v. State of Kerala

Kerala HC12 Jun 2012WP(Crl.)/118/2012

Case brief

AI extract

What is this about?

The Court quashed a detention order under the Kerala Anti-Social Activities (Prevention) Act, 2007. It held that the detaining authority suffered from total non-application of mind by ignoring the fact that the detenu was released on bail with a condition prohibiting him from committing offences or engaging in prejudicial activities.

What did the court decide?

The order of detention is set aside and the detenu shall be released forthwith unless his detention is required for another case.

Jijo Thankachan Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE K.T.SANKARAN & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS

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TUESDAY, THE 12TH DAY OF JUNE 2012/22ND JYAISHTA 1934 WP(Crl.).No. 118 of 2012 (S)

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PETITIONER:

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JIJO THANKACHAN, AGED 24 YEARS S/O.THANKACHAN, RESIDING AT VENATTUPARAMBIL HOUSE NEDUMBASSERY VILLAGE, ERNAKULAM DISTRICT PIN-683578.

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BY ADVS.SRI.C.K.PAVITHRAN SRI.M.VIVEK

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RESPONDENTS:

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STATE OF KERALA REPRESENTED BY HOME SECRETARY, SECRETARIATE THIRUVANANTHAPURAM-695001.

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THE DISTRICT MAGISTRATE, KAKKANAD, ERNAKULAM-682030.

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THE SUPERINTENDENT OF POLICE (RURAL), ALUVA, ERNAKULAM-683 101.

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THE CIRCLE INSPECTOR OF POLICE, ANGAMALY-683 572.

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THE SUB INSPECTOR OF POLICE, CHENGAMANAD-683 578.

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BY ADV. A.D.G.P.,SHRI K I ABDUL RASHEED

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(CRL.) 118/2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1 : TRUE COPY OF the DETENTION ORDER DT.19.12.2011 EXT.P2 : TRUE COPY OF THE GOVERNMENT ORDER DT.23.2.2012 EXT.P3 : TRUE COPY OF the REPORT NO.1636/CAMP/2010-E.R. DATED 15.11.2011 ISSUED BY THE 3RD RESPONDENT.

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RESPONDENT'S' EXHIBITS:

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EXT.R3(a): TRUE COPY OF THE MASS PETITION FILED BY PUBLIC.

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// TRUE COPY //

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PA TO JUDGE

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K.T.SANKARAN & M.L.JOSEPH FRANCIS JJ.,

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- - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) 118 of 2012 S

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Dated this the 12^th day of June, 2012

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JUDGMENT

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K.T. Sankaran J.,

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As per Ext.P1 order dated 19.12.2011 issued by the 2^nd respondent, the petitioner's brother, Justin Thankachan was detained under the Kerala Anti-Social Activities (Prevention) Act 2007 (hereinafter referred to as 'the Act'). The order of detention was executed on 21.12.2011 and he has been detained in Central Prison, Viyyur. As per Ext.P2 dated 23.2.2012, the Government confirmed the order invoking Section 10(4) of the Act. The petitioner's brother is detained on the ground that he is a 'known rowdy' as defined in Section 2(p)(iii) of the Act.

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The main ground urged against the order of detention is that the detaining authority did not apply its mind to the factum of the detenu having been released on bail, as per order dated

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W.P.(Crl.) 118 of 2012

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:2:

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25.11.2011. It is submitted that he was released on bail as per order dated 25.11.2011 in B.A. No.9550 of 2011, however, with effect from 30.11.2011. One of the conditions imposed while granting bail was that the detenu shall not commit any offence or indulge in any prejudicial activity, while on bail. The detaining authority specifically stated in the grounds of detention that there are grounds for a reasonable apprehension that the detenu would indulge in anti-social activities shattering public peace and tranquility, once released from the judicial custody. It is submitted that a specific condition is provided in the order granting bail that the detenu shall not indulge in any prejudicial activity or commit any offence, while on bail. Had this been taken note of by the detaining authority, the satisfaction arrived at would have been different, submits the learned counsel for the petitioner. In other words, it is submitted that there is a total non-application of mind in respect of the relevant facts. It is submitted that the detention order was passed much later than the order in B.A. No.9550 of 2011 was passed. Still, that was not brought to the notice of the detaining authority by

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W.P.(Crl.) 118 of 2012

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the sponsoring authority and the detaining authority could not take

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into account that particular fact into consideration.

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Learned counsel for the petitioner relied on the decision of

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the Division Bench held in Pradeep Kumar v. Union of India (2012(2) KLT 229) , wherein it was held thus:

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“More importantly, this is a case where as noted bail was granted on 20.7.2011. One of the conditions imposed in the order granting bail is that the detenu shall not involve in any other crime while on bail. Bail order is passed on 20.7.2011. The order of detention is passed on 27.9.2011. Learned Additional D.G.P would, after getting instructions, also submit that after the date of the bail order and after being enlarged on bail, the detenu has not committed any crime. No doubt, his case is that the detenu violated one of the bail conditions, namely, that he should report before the police officer. But, as far as the crucial condition in the bail order that he shall not involve in any crime we can proceed on the basis that the said conditions had not been flouted by the detenu. Unlike the fact situation in Sunitha Mujeeb's case where as noted by the Bench the bail conditions were geared to secure the interests of

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:4:

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W.P.(Crl.) 118 of 2012

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investigation in that case, in this case the conditions include the condition that the detenu shall not involve in any crime. This condition we are of the view is germane and crucial in a proceeding under Section 3 of the Act. This was indeed vital information which may have turned the case in favour of the detenu that is to say had this condition been considered by the Magistrate the Magistrate may have come to a different conclusion. Therefore this was vital information which was not placed before the Magistrate. On that score alone the order of detention is liable to be interfered with. The order of detention is liable to be interfered also on the ground that the said bail condition has not even been considered by the detaining authority. There is non application of mind to a relevant and vital aspect of the matter.”

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We are of the view that the decision in Pradeep Kumar v. Union of India squarely applies to the facts of this case. The order of detention is vitiated due to the non application of mind. The factum of the detenu having been released on bail was not

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W.P.(Crl.) 118 of 2012

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brought to the notice of the detaining authority. The satisfaction

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arrived by the detaining authority is therefore vitiated.

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For the aforesaid reasons, the Writ Petition is allowed and

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the order of detention is set aside. The detenu, Justin Thankachan,

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who is undergoing detention in the Central Prison, Viyyur, shall be released forthwith, unless his detention is required in connection with some other case.

K.T. SANKARAN,

(JUDGE)

M. L. JOSEPH FRANCIS, (JUDGE)

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dl/

Jijo Thankachan v. State of Kerala

Case brief

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Jijo Thankachan v. State of Kerala

Case brief

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