KAAPA | Subsequent Detention Can't Exceed 6 Months If 'First Detention' Order Passed Prior To 2014 Amendment: High Court

The Kerala High Court has delivered a significant interpretation surrounding preventive detention under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 and the 2014 amendment which expanded the maximum period of detention.

Section 12, prior to the amendment stipulated the maximum period of detention as 6 months. With the 2014 Amendment, the 'first detention' can last a maximum period of 6 months but the 'subsequent detention' can be of upto one year.

A division bench of Justices Muhammed Mustaque and Shoba Annamma Eapen has now clarified that if a preventive detention order was passed prior to the 2014 Amendment, such an order will not constitute 'first detention'. In other words, detention order passed prior to 31.12.2014, cannot be taken into account for passing a subsequent detention order for a maximum period of one year.

The bench reasoned that detention order is in the nature of depriving liberty of a person and therefore, statutory provision will have to be construed strictly in that sense.

"Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. In the sense, the first detention order must have been after 31.12.2014..."

In the case at hand, the detenu was detained in May last year. The earlier detention order against the detenu was in the year 2009. "That cannot be taken into account for imposing maximum one year detention after 31.12.2014. There is no embargo under the law to detain such persons, who was detained prior to 31.12.2014 for a period of six months," Court said.

In the facts and circumstances of the case, Court also noted that the live-link between the last prejudicial activity and the detention order had snapped.

As such, the detention order was set aside with the petitioner subsequently released.

Counsel for Petitioner: Advocates MH Hanis, PM Jinimol, TN Lekshmi Shankar, Anandhu PC, Neethu Nadh and Ciya EJ

Counsel for Respondent: Advocate KA Anas

Citation: 2024 LiveLaw Ker (16)

Case Title: Prabhulla P v. State of Kerala

Case Number: WP (Crl) No. 852 of 2023