Allowed

Jimesh Jose v. State of Kerala

Kerala HC21 Nov 2012WP(Crl.)/370/2012

Case brief

AI extract

What is this about?

The High Court of Kerala quashed a preventive detention order under the Kerala Anti-Social Activities Act. The court held the order was invalid due to non-application of mind regarding the detenu's judicial custody and unexplained inordinate delay. Consequently, the petitioner was ordered to be released.

What did the court decide?

Ext.P1 detention order quashed; Petitioner directed to be set at liberty forthwith if not wanted in any other case.

Jimesh Jose 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 PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 21ST DAY OF NOVEMBER 2012/30TH KARTHIKA 1934 WP(Crl.).No. 370 of 2012 (S) ---------------------------PETITIONER(S): -------------

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JIMESH JOSE,, AGED 24 YEARS S/O.JOSE,PARELAN HOUSE,AYYAMPUZHA.P.O KALADY VILLAGE,ERNAKULAM DISTRICT-683581. BY ADVS.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER

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RESPONDENT(S):

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STATE OF KERALA,

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REPRESENTE BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT

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HOME DEPARTMENT,GOVERNMENT SECRETARIAT

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TRIVANDRUM-695001.

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THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, ERNAKULAM-682018.

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THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL,ALUVA,ERNAKULAM DISTRICT PIN-682018.

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THE SUB INSPECTOR OF POLICE,

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AYYAMPUZHA POLICE STATION,AYYAMPUZHA.P.O ERNAKULAM DISTRICT-683581.

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THE SUPERINTENDENT OF CENTRAL PRISON,

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POOJAPPURA,POOJAPPURA.P.O,THIRUVANANTHAPURAM PIN-696012.

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BY DIRECTOR GENERAL OF PROSECUTION (SHRI.T. ASAF ALI)

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THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01-11-2012, THE COURT ON 21.11.2012 DELIVERED THE FOLLOWING:

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W.P.(Crl.)370/2012

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	TRUE COPY OF THE DETENTION ORDER DATED 26.5.2012 OF THE 2ND RESPONDENT.
EXT.P2:	A TRUE COPY OF THE GROUNDS OF DETENTION DATED 26.5.2012.
EXT.P3:	TRUE COPY OF THE REPORT DATED 5.3.2012 OF THE 3RD RESPONDENT.
EXT.P4:	TRUE COPY OF THE REPORT DATED 16.5.2012 OF THE 3RD RESPONDENT.
EXT.P5:	A TRUE COPOY OF THE REPRESENTATION DATED 27.06.2012 FORWARDED TO THE 1ST R ESPSONDENT THROUGH THE 5TH RESPONDENT.
EXT.P6: RESPONDENT	THE TRUE COPY OF THE REPRESENTATION DATED 27.6.2012 TO THE ADVISORY BOARD CONSTITUTED UNDER THE ACT. S'EXHIBITS:
EXT.R2(a):	TRUE COPY OF THE ORDER NO.M-7/23929/12 DATED 26-05-2012.
EXT.R2(b):	TRUE COPY OF THE REPORT NO. 2722/CAMP/2009-ER DATYED 05-03-2012 AND 16-05-2012.
EXT.R2(c):	TRUE COPY OF THE EARLIER DETENTION ORDER NO.M-7-50101/2009 DATED 16.9. 2009.

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// TRUE COPY //

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P.S. TO JUDGE.

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PIUS C. KURIAKOSE &

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BABU MATHEW P. JOSEPH, JJ.

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W.P.(Crl.) No. 370 of 2012 S

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Dated this the 21^st day of November, 2012

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JUDGMENT

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Babu Mathew P. Joseph, J.

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This Writ Petition is filed under Article 226 of the Constitution of India praying for the following reliefs:

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(i) A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenu Jomesh, S/o Jose, Parelan House, Kalady Village, Ernakulam District before this Hon'ble Court and to set him at liberty forthwith.

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(ii) Declare that Ext.P1 detention order and the detention pursuant to the same are illegal and vitiated.

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(iii) Such other orders as are deemed fit and proper in the circumstances of the case.

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[W.P.(Crl.).370/2012]

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The petitioner is the brother of the detenu. The detenu was placed under preventive detention with immediate effect at Viyyur Central Jail by Ext.P1 order of detention dated 26.5.2012 passed by the second respondent, the District Collector and District Magistrate. The second respondent has passed Ext.P1 order exercising his powers under Section 3(1) of the Kerala AntiSocial Activities (Prevention) Act, 2007 [for short, KAA(P)A]. Pursuant to Ext.P1, the detenu was taken into custody by the fourth respondent, the Sub Inspector of Police, on 28.5.2012 and admitted him to the Central Prison, Viyyur on that day itself. Subsequently, he was transferred to the Central Prison, Poojappura and he is continuing under detention there. Ext.P1 order has been approved by the Government, the first respondent, as per order dated 8.6.2012. The detenu preferred Ext.P5 representation dated 27.6.2012 before the first respondentfor revoking Ext.P1 order and for setting him free. But, that representation has been rejected by the first respondent. The detenu has also preferred Ext.P6 representation dated 27.6.2012 before the Advisory Board for revoking the detention order and for setting him free. The Advisory Board

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[W.P.(Crl.).370/2012]

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submitted a report dated 27.7.2012 finding that there was sufficient cause to detain the detenu. Thereafter, the first respondent has issued order dated 3.8.2012 confirming the order of detention and directing to continue the detention for six months from the date of detention. The petitioner challenges Ext.P1 order of detention on various grounds in this Writ Petition.

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Heard Shri. O.V.Maniprasad, the learned counsel appearing for the petitioner, and Shri. T.Asaf Ali, the learned State Public Prosecutor appearing for the respondents.

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The District Police Chief, third respondent, submitted Ext.P3 report dated 5.3.2012 and Ext.P4 report dated 16.5.2012 before the second respondent requesting him to pass an order under Section 3(1) of KAA(P)A for detaining the detenu as he is a 'known rowdy' indulging himself in anti-social activities necessitating his detention. The second respondent, after considering Exts.P3 and P4, found the detenu to be a 'known rowdy' as defined under Section 2(p)(iii) of KAA(P)A. The second respondent, in Ext.P1 detention order, relied on the following 7 criminal cases in which the detenu is involved:

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[W.P.(Crl.).370/2012]

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Sl. No.	Crime Number	Name of Police Station	Date of Occurrence	Offences Alleged
1	16 of 2007	Ayyampuzha	24.12.2006	^{Ss. 341, 323, 506(i)} and 34 of IPC.
2	51 of 2008	Ayyampuzha	07.05.2008	Ss.143, 147,148, 447, 323, 326 and 149 of IPC.
3	1473 of 2008	Angamaly	27.09.2008	Ss.143, 147, 148, 341, 323, 324, 506 (ii) and 149 of IPC.
4	333 of 2009	Perumbavoor	10.02.2009	Ss. 324, 326, 307, 294(b), 120B and 34 of IPC & S.25 of the Arms Act.
5	631 of 2009	Kalady	09.06.2009	Ss. 341, 323, 506 (ii) and 34 of IPC & S.27 of the Arms Act.
6	467 of 2011	Kalady	19.05.2011	Ss. 425, 323, 324, 354, 427 and 34 of IPC.
7	1316 of 2011	Kalady	07.12.2011	^{Ss. 308 and 34 of} IPC

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In all these cases, after investigation, Final Reports have been filed before the courts. Two other criminal cases viz. Crime No.46 of 2012 of Kalady Police Station alleging the offences under Sections 143, 147, 148, 452, 506(ii) and 149 of IPC and Crime No.232 of 2012 of Kalady Police Station alleging the offence under Section 5 of the Explosive Substances Act were

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[W.P.(Crl.).370/2012]

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relied on for showing the continued anti-social activities of the detenu.

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The detention of the detenu has been challenged in this Writ Petition raising various grounds. But, two grounds alone have been pressed into service by the learned counsel for the petitioner at the time of hearing. They are: (1) The second respondent has noted in Ext.P1 detention order that the detenu was in judicial custody at that time. Also noted that it was reasonably anticipated that there was every possibility for the detenu to be enlarged on bail. No materials were available with the second respondent for making the said observations and entering the finding that the detenu would indulge himself in anti-social activities threatening public peace and order. Therefore, the second respondent has not applied his mind to the relevant facts before passing Ext.P1 detention order under Section 3(1) of KAA(P)A. (2) The occurrence in Crime No.46 of 2012 of Kalady Police Station was on 10.1.2012. That was alleged to be the last anti-social activity committed by the detenu. Ext.P1 order has been passed only on 26.5.2012. Therefore, an inordinate delay of about 4½ months occurred in passing Ext.P1

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[W.P.(Crl.).370/2012]

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detention order after the last anti-social activity allegedly committed on 10.1.2012. This delay has not been explained by the second respondent in Ext.P1 order.

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Shri. O.V.Maniprasad and Shri.T.Asaf Ali have advanced detailed arguments before us. Shri. Asaf Ali submitted that the contentions so raised by Shri. Maniprasad were not sustainable. According to him, Ext.P1 detention order is not suffering from any legal flaws warranting interference by this Court. Both the sides have relied on various rulings in support of their contentions.

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Learned counsel for the petitioner submitted that the

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detenu was arrested by the police in Crime No.232 of 2012 of Kalady Police Station on 27.3.2012. Ext.P1 order was served on him while he was in judicial custody in that case. In such a circumstance, unless the second respondent was able to satisfy himself with the help of cogent materials before him that the detenu was already under detention and there were compelling reasons justifying a detention under KAA(P)A despite the fact that the detenu was already under detention, no order of detention under KAA(P)A could be passed. The sponsoring authority, third respondent, has reported in Ext.P4 that the detenu was under

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judicial custody and, at any time, he would be enlarged on bail. But, no materials showing the fact that he was under judicial custody and the possibility of enlarging him on bail in the near future have been submitted along with his reports by the third respondent. No copy of the bail application by the detenu has been submitted. There is no case for the respondents 1 to 3 in their counter affidavits that such materials had been furnished to the second respondent along with the reports submitted by the third respondent. So, there was no occasion for the second respondent to enter the findings that the detenu was under judicial custody and that it was reasonably anticipated that there was every possibility for the detenu to be enlarged on bail. Therefore, it is quite evident that the second respondent has not applied his mind as to whether a detention under KAA(P)A was necessary or not in such a circumstance. There was no information at all with the second respondent as to whether the detenu had even attempted to get bail or not in that case. As a matter of fact, the detenu was also formally arrested and remanded to judicial custody in Crime No.46 of 2012 of Kalady Police Station. The offences alleged in both these cases are

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[W.P.(Crl.).370/2012]

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non-bailable and serious in nature. Moreover, the other accused in Crime No.232 of 2012, who were arrested long before the detenu was arrested, were not enlarged on bail. In fact, the bail application, M.P.No.1109(A)/2012, moved by the petitioner in Crime No. 232 of 2012 has been dismissed by the Judicial First Class Magistrate's Court-I, Perumbavoor, on 11.6.2012, submitted the learned counsel. He has produced a copy of that order for our perusal. He further submitted that no application for bail has been filed in Crime No.46 of 2012. Therefore, the subsequent developments also negative the apprehension entertained by the second respondent that there was every possibility of detenu being enlarged on bail.

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The Supreme Court in Rameshwar Shaw v. District Magistrate, Burdwan (AIR 1964 SC 334) observed as follows:

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“.........If a person is already in jail custody, how can it rationally be postulated that if he is not detained, he would act in a prejudicial manner? At the point of time when an order of detention is going to be served on a person, it must be patent that the said person would act prejudicially if he is not detained and that is a consideration which would be absent when the

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authority is dealing with a person already in detention.........”

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In Rekha v. State of Tamil Nadu [(2011) 5 SCC 244] the Supreme Court considered the following statement made by the detaining authority in the grounds of detention:

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“4. I am aware that Thiru. Ramakrishnan is in remand in P-6, Kodungaiyur Police Station, Crime No.132 of 2010 and he has not moved any bail application so far. The sponsoring authority has stated that the relatives of Thiru. Ramakrishnan are taking action to take him on bail in the above case by filing bail applications before the higher courts since in similar cases bails were granted by the courts after a lapse of time. Hence, there is real possibility of his coming out on bail in the above case by filing a bail application before the higher courts. If he comes out on bail he will indulge in further activities, which will be prejudicial to the maintenance of public health and order........”

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On considering the above statement, the Supreme Court observed and held as follows:

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“7. A perusal of the above statement in Para 4 of the grounds of detention shows that no details have been given about the alleged similar cases in which

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[W.P.(Crl.).370/2012]

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bail was allegedly granted by the court concerned. Neither the date of the alleged bail orders has been mentioned therein, nor the bail application number, nor whether the bail orders were passed in respect of the co-accused on the same case, nor whether the bail orders were passed in respect of other coaccused in cases on the same footing as the case of the accused. All that has been stated in the grounds of detention is that “in similar cases bails were granted by the courts”. In our opinion, in the absence of details this statement is mere ipse dixit, and cannot be relied upon. In our opinion, this itself is sufficient to vitiate the detention order.”

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It was further held in this decision that a mere ipse dixit statement in the grounds of detention cannot sustain the detention order and has to be ignored. The Supreme Court in Huidrom Konungjao Singh v. State of Manipur [(2012) 7 SCC 181] held as follows:

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“9. In view of the above, it can be held that there is no prohibition in law to pass the detention order in respect of a person who is already in custody in respect of criminal case. However, if the detention order is challenged the detaining authority has to satisfy the Court the following facts:

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[W.P.(Crl.).370/2012]

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(1) The authority was fully aware of the fact that the detenu was actually in custody.

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(2) There was reliable material before the said authority on the basis of which it could have reasons to believe that there was real possibility of his release on bail and further on being released he would probably indulge in activities which are prejudicial to public order.

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(3) In view of the above, the authority felt it necessary to prevent him from indulging in such activities and therefore, detention order was necessary.”

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In the case on hand, the second respondent had no material for entering a finding that the detenu was in judicial custody at the time of passing Ext.P1 detention order. The sponsoring authority had not supplied any material showing that the detenu was in judicial custody. Before passing an order under Section 3(1) of KAA(P)A detaining a person who is already in custody in connection with a criminal case, the District Magistrate should fully aware of the fact that the detenu was actually in custody. Without any material, as happened in this case, there

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[W.P.(Crl.).370/2012]

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cannot be a finding by the District Magistrate that the detenu was actually in custody in connection with a criminal case. Therefore, non-application of mind by the detaining authority to such a relevant fact is writ large in such cases.

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The second respondent has stated in Ext.P1 detention order that 'it is reasonably anticipated that there is every possibility for him to get enlarged on bail'. While making this statement, no materials like bail application by the detenu or orders granting bail to the co-accused or any other necessary details were available with the second respondent. There must be cogent materials before the authority who is passing the detention order showing the real likelihood of release of the person in custody on bail. In the absence of such details, the statement so made by the second respondent in Ext.P1 is only an ipse dixit which cannot be relied on. Here again, absence of application of mind to the relevant facts on the part of the second respondent is quite evident. Ext.P1 detention order can be branded only as an order mechanically issued without any application of mind to the relevant facts. Therefore, we are of the view that Ext.P1 detention order is vitiated by the non-

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[W.P.(Crl.).370/2012]

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application of mind by the second respondent. The precious right of personal liberty guaranteed under Article 21 of the Constitution cannot be curtailed or taken away by passing such detention orders.

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We shall now consider the second argument of the learned counsel for the petitioner that there was inordinate and unexplained delay in passing Ext.P1 detention order after the last alleged anti-social activity. The second respondent has relied on Crime No.46 of 2012 of Kalady Police Station in order to arrive at the finding that the detenu was continuing his anti-social activities. The occurrence in Crime No.46 of 2012 was on 10.1.2012. Therefore, the last anti-social activity alleged against the detenu has taken place on 10.1.2012. But, Ext.P1 detention order has been passed by the second respondent only on 26.5.2012. This shows that there was a delay of 4½ months in passing the detention order after the alleged last antisocial activity on 10.1.2012. The second respondent observed in Ext.P1 order that if the detenu was at large he would indulge in anti-social activities which would directly or indirectly cause harm, danger or alarm or a feeling of insecurity or threat to

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public life. So, in order to protect the members of the general public from the anti-social activities of the detenu, Ext.P1 order has been passed. The petitioner has specifically averred and contended in this Writ Petition that Ext.P1 detention order is bad owing to inordinate and unexplained delay. That the cause of delay has not been explained at all in Ext.P1. Moreover, the respondents 1 and 2 have not given any satisfactory explanation in their counter affidavits for the delay caused in passing Ext.P1 order. So, the delay occurred in this case remains unexplained by the respondents 1 and 2. Mere delay in passing the detention order after the last prejudicial activity alone is not a sufficient ground for vitiating the order of detention provided the delay is satisfactorily explained by the authorities concerned.

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Dealing with the delay in passing the detention order, the Supreme Court held in T.A. Abdul Rahman v. State of Kerala (AIR 1990 SC 225) as follows:

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“........However, when there is undue and long delay between the prejudicial activities and the passing of detention order, the Court has to scrutinise whether the detaining authority has satisfactorily examined such a delay and afforded

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[W.P.(Crl.).370/2012]

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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.”

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Dealing with the unexplained delay, the Supreme Court in P.N.Paturkar v. S. Ramamurthi (AIR 1994 SC 656) held as follows:

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“14. Under the above circumstances, taking into consideration of the unexplained delay whether short or long especially when the appellant has taken a specific plea of delay, we are constrained to quash the detention order......”

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The maximum period of detention under KAA(P)A shall not exceed six months from the date of detention as determined under Section 12. KAA(P)A is intended to effectively preventing and controlling anti-social activities in the State of Kerala. Therefore, the detaining authority is passing a detention order exercising his powers under Section 3 of KAA(P)A for the purpose of preventing a known goonda or known rowdy from committing any anti-social activities. This is for protecting the members of the general public in the State of Kerala from such anti-social

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[W.P.(Crl.).370/2012]

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activities. The Legislature thought it proper to fix the maximum period of detention under KAA(P)A as six months. In the case on hand, the last alleged anti-social activity occurred on 10.1.2012. But, the second respondent has passed Ext.P1 detention order only on 26.5.2012. When the maximum period for which a person can be detained is determined to be six months, a delay of 4½ months in passing the detention order after the last antisocial activity can only be considered as an inordinate delay. Here, no explanation has been given for the delay either in Ext.P1 detention order or in the counter affidavits filed by the respondents 1 and 2. Therefore, the inordinate and unexplained delay occurred in this case is fatal in nature and hence, it vitiates the detention order. Such a delay, definitely, cast doubt on the genuineness of the subjective satisfaction of the detaining authority. It can be inferred from the inordinate and unexplained delay that the second respondent was not satisfied regarding the necessity for detaining the detenu for the purpose of preventing him from committing anti-social activities. Such delayed order cannot be considered as one passed for protecting the members

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of the general public from the anti-social activities as claimed by the second respondent in Ext.P1.

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For the foregoing reasons, the petitioner is entitled to succeed on both the grounds urged by his learned counsel. Ext.P1 detention order is liable to be quashed and the petitioner is entitled to be released forthwith. Therefore, we quash Ext.P1 order issued by the second respondent and approved and confirmed by the first respondent. The Superintendent, Central Prison, Poojappura, is directed to set the detenu at liberty forthwith, if he is not wanted in any other case. The Registry of this Court is directed to issue release order forthwith.

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This Writ Petition is allowed.

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Sd/-

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PIUS C. KURIAKOSE, JUDGE.

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Sd/- BABU MATHEW P. JOSEPH, JUDGE.

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krs.

Jimesh Jose v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jimesh Jose v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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