Unexplained Delay In Issuing Detention Order After Last Prejudicial Activity Of Detenu Is Ground For Quashing: Kerala High Court

The Kerala High Court on Monday held that a detention order issued against a person can be quashed on the basis of unexplained delay in issuing the order of detention after the last prejudicial activity of the detenu, as per the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter, 'KAAPA'). 

The Division Bench comprising Justice P.B. Sureshkumar and Justice C.S. Sudha observed, 

"It is trite that there has to be a live link between the prejudicial activity and the order of detention and if the said link is snapped, the order of detention would be bad. In other words, an unexplained delay in issuing the order of detention after the last prejudicial activity would certainly vitiate the order of detention, for the delay would snap the live link between the prejudicial activity and the detention order". 

However, the Court observed that if there is a satisfactory explanation for the delay, the same would not affect the order, and added that the question of satisfactory explanation of delay would have to be ascertained on the basis of the facts of each case. The Bench further added that the Statute as such contemplates detention only for a period of six months in order to achieve its purpose.

The writ petition herein was instituted seeking a writ of Habeas Corpus directing the respondents to produce the father of the petitioner who had been detained in terms of an order issued under Section 3(1) read with Section 3(2) of the KAAPA. The detention order was issued on December 7, 2022, and executed on December 14, 2022. I was approved by the Government, as provided under Section 3(3) of KAAPA on December 26, 2022. The order was issued on the premise that the petitioner's father was a known rowdy in terms of the provisions of KAAPA, and his detention was necessary in order to prevent him from committing any antisocial activity. 

It was contended by the counsels for the petitioner that the detention order is illegal since the procedural requirement under Section 3(3) of KAAPA, which stipulates that it is obligatory on the part of the Authorized Officer exercising powers under Section 3(2) of the Act to report the factum of detention to the Government and the Director General of Police, together with a copy of the order and supporting records, which, in his opinion, have a bearing on the matter, had not been complied with in this case.

It was submitted that although the detention order was passed as early as on December 7, 2022, the same along with the supporting documents were forwarded by the Government only on December 22, 2022. Additionally, it was contended that the last prejudicial activity alleged in the detention order took place on June 17, 2022, while the Order was issued only in December, after about 5 months and 24 days. It was argued that since the delay was not satisfactorily explained, the detention order was bad inasmuch as it did not disclose a live link between the prejudicial activities of the detainee and the detention order. 

On behalf of the respondents however, it was argued that the detention order and the supporting documents had been communicated to the Government by the Authorised Officer on December 7, 2022 itself, and that there had been no delay in complying with the requirement under Section 3(3) of the Act. It was contended that although the detention order was issued after a delay of 5 months and 24 days from the last prejudicial activity, the said delay had been satisfactorily explained in the detention order, and it could not be contended that the delay is fatal to the detention. 

The Court noted that the question whether there is compliance of the requirement in Section 3(3) of KAAPA would have to be decided on the facts and circumstances of each case. The Court took note of the argument in the counter affidavit that a proposal had been submitted to the Government on December 22, 2022, after the execution of the detention order. The Court discerned that the argument raised by the petitioner that- the detention order was communicated to the Government in terms of the said proposal could not be treated as a communication made forthwith- could not be accepted since it was not supported by any pleading. The Court was of the view that in the absence of any reply by the petitioner to the specific averment made in the counter affidavit that the detention order had been communicated to the Government on the date of the order itself, the argument raised by the petitioner in this regard had to be rejected.

As regards the question of delay in issuance of the detention order, the Court noted that the proposal for detention was submitted by the competent authority only on September 9, 2022, almost three months after the last prejudicial activity. The Court further took note of the explanation for the delay given in the detention order that the same was due to the time taken for collecting the necessary documents relating to the various cases in which the detenu was involved, and ascertained the same to be 'vague'. 

"Having regard to the scheme of the Act, it was obligatory for the authorities to act vigilantly in the matter of invoking their powers under the Act and if not, the very purpose of the Statute will be defeated. It is all the more so since the Statute curtails the rights guaranteed to the detainees under Article 21 of the Constitution of India. The explanation offered for the delay in the order depicts a casual approach. We are unable to accept the stand taken by the competent authority that three months time is required for collecting the particulars of four cases registered against a person in one police station, especially when the proposal was submitted by the Station House Officer of the very same police station. We do not also find any satisfactory explanation for the delay in issuing the order after the proposal. The explanation offered in this regard that the aforesaid time is taken for examining the proposal and for obtaining additional information is also vague," the Court observed. 

It thus quashed the detention order on finding it to be vitiated. It thereby directed the petitioner's father to be released if not otherwise required. 

Advocates Krishna Prasad S., Sindhu S. Kamath, Swapna S.K., Rohini Nair, and Suraj Kumar D. appeared on behalf of the petitioner. The respondents were represented by Public Prosecutor K.A. Anas. 

Case Title: Rasiya P.M. v. State of Kerala & Ors. 

Citation: 2023 LiveLaw (Ker) 247

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