Anti-Social Activities (Prevention) Act, 2007 (Kerala) – S.12 – Detenu – Whether detention of a person under the KAAPA pursuant to his arrest, six months after the order of detention, is vitiated since the maximum period for which he can be detained shall not exceed six months?
2012 (3) KLT 1 : 2012 (2) KLJ 837 : 2012 (2) KHC 745
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.T. SANKARAN & M.L. JOSEPH FRANCIS, JJ.
W.P.(CRL.) NO.153 OF 2012 (S)
Dated this the 8th day of June, 2012
FOR PETITIONER: BY ADV. SRI.O.V.MANIPRASAD FOR RESPONDENTS: BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.K.I.ABDUL RASHEED
J U D G M E N T
The question involved in the Writ Petition (Criminal) is whether detention of a person under the
Kerala Anti-Social Activities (Prevention) Act, 2007
(hereinafter referred to as ‘KAAPA’) pursuant to his arrest, six months after the order of detention, is vitiated since the maximum period for which he can be detained under Section 12 of KAAPA shall not exceed six months.
2. The petitioner is the father of Binoy, who was detained pursuant to Ext.P1 order of detention dated 27.7.2011 issued under the KAAPA. Binoy, the detenu, was arrested on 3.2.2012. The order of detention was issued on the ground that the detenu was involved in several crimes and therefore, he is to be considered as ‘known rowdy’ as per Section 2(p)(iii) of KAAPA. The specific case of the petitioner is that the continued detention of the detenu is illegal on two grounds. (1) The order of detention was executed after six months of the date of issue of the order. The maximum period of detention contemplated under the Act is six months. Therefore, the foundation of the order of detention is lost. (2) The detenu appeared before Court in three of the crimes referred to in the order of detention on several dates after the order of detention. Therefore, it cannot be said that the detenu was absconding. This would indicate that there was inordinate delay in executing the order of detention. The long gap in passing of the order of detention and the execution of the same has snapped the nexus between the alleged illegal activity and the order of detention.
3. As regards the first point, the learned counsel for the petitioner relied on the decision in
Soja Beegum v. Additional Chief Secretary to Government, 2009 (4) KLT 550
wherein it was held thus:
“Under S.12 of the KAAPA, the maximum period of detention permissible is six months. The foundation of an order of detention under S.3 of the KAAPA is the perception of the possible contumacious conduct during the next six months from the date of passing the order. In these circumstances, the very foundation of the necessity for detention will be lost, if the authorities do not show eagerness to execute the warrant of arrest. Executing warrant of arrest beyond the period of six months is really unnecessary as the perception of the detaining authority is evidently the possibility of contumacious behaviour during six months to follow the date of the order.”
4. On a careful consideration of the decision in Soja Beegum’s case, we are of the view that the above quoted passage does not constitute the dictum laid down by the Division Bench. It could only be said that the aforesaid observations were made as passing reference.
5. Section 12 of KAAPA provides that the maximum period for which any person may be detained in pursuance of any detention order made under the Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention. It is true that the order of detention is to be executed without delay. But it cannot be said that detaining a person beyond the period of six months is unnecessary on the ground that the perception of the detaining authority is evidently the possibility of contumacious behaviour during six months after the date of the order. The period of six months mentioned in Section 12 of KAAPA is to commence from the date of detention and not from the date of the order of detention.
Assia v. State of Kerala, 2000 (1) KLT 673
while dealing with a case of detention under the COFEPOSA Act, the Supreme Court held thus:
“6. In view of the above object of preventive detention, it becomes very imperative on the part of the detaining authority as well as the executing authorities to be very vigilant and keep their eyes skinned but not to turn a blind eye in securing the detenu and executing the detention order because any indifferent attitude on the part of the detaining authority or executing authority will defeat the very purpose of the preventive action and turn the detention order as a dead letter and frustrate entire proceedings. There must be a live and proximate link between the grounds of detention alleged by the detaining authority and avowed purpose of detention, namely, prevention of smuggling activities. The link is snapped if there is long and unexplained delay between date of order of detention and arrest of detenu. In such cases, an order of detention can be struck down unless grounds indicate a fresh application of mind of the detaining authority to the new situation and changed circumstances. But where delay is not only adequately explained but is found to be the result of recalcitrant or refractory conduct of detenu in evading arrest, there is warrant to consider the link not snapped but strengthened. (See
Bhawarlal Ganeshmalji v. State of Tamil Nadu, AIR 1979 SC 541
Whether delay was unreasonable or not depends on the facts and circumstances of each case. If there is unreasonable delay between date of order of detention and date of arrest of detenu, such delay unless satisfactorily explained throws a considerable doubt on the genuineness of the requisite subjective satisfaction of the detaining authority in passing detention order and consequently render detention order bad and invalid because the live and proximate link between grounds of detention and the purpose of detention is snapped in not arresting detenu.”
7. The question to be considered is not whether six months elapsed from the date of the order of detention to the date of arrest of the person concerned. The question is whether there is long and unexplained delay between the date of the order of detention and the date of arrest of the detenu. If the delay is satisfactorily explained and if the Court finds that the detenu could not be arrested and detained not because of any fault on the part of the executing authority, the detenu cannot take advantage of the delay in execution of the order of detention and contend that his detention is illegal. If the order of detention could not be executed due to the contumacious act of the detenu, he cannot be heard to say that the live and proximate link between the grounds of detention and the purpose of detention was snapped by the delay in execution of the order of detention. We are of the view that the purpose of an order of detention under Section 3 of KAAPA is not only to prevent the detenu from indulging in illegal activities for a period of six months from the date of passing of the order but to prevent him from indulging in such activities in future. The requirement under Section 3 of the KAAPA is the satisfaction of the detaining authority that with a view to prevent a person from committing any anti-social activity within the State of Kerala in any manner, it is necessary to detain such person. Such satisfaction of the detaining authority is not with regard to the prejudicial activity of the person concerned for a future period of six months. We cannot read into Section 3 such a limitation on the ground that the maximum period of detention provided under Section 12 is only six months. It cannot be said that once the period of six months is elapsed from the date of the order of detention, a person cannot be detained at all on the ground that the live and proximate link between the grounds of detention and the purpose of detention is snapped.