KAAPA | Detaining Authority Duty-Bound To Consider Previous Opinion Of Advisory Board; Non-Consideration Of Relevant Materials Fatal: Kerala HC

The Kerala High Court recently held that the previous opinion of the Advisory Board, which led to the revocation of the earlier detention order, and even the revocation of such detention order, are crucial materials which ought to be examined and considered by the detaining authority before it takes a decision for another detention under the Kerala Anti-Social Activities (Prevention) Act, 2007.

The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas, observed, 

"...the non consideration of such relevant materials is fatal and the decision making process ... is liable to be interdicted". 

The court added:

"It was the bounden duty of those authorities, more particularly, the detaining authority, to consider the impact and effect of the said opinion of the Advisory Board, to decide as to whether the ingredients of Section 13(2) are duly fulfilled. It is all the more necessary when the Advisory Board, in its previous opinion, has pointed out specific procedural flaws and that therefore, the parameters in clause (iii) of Section 13(2) would then be highly relevant and prominent. So, at least after such due consideration by the detaining authority, the non confidential part of the opinion of the Advisory Board, in favour of the detenu, which led to the revocation of the previous detention order, and the order of the State Government, revoking the previous detention order, should have been made available to the detenue concerned, as well as for the consideration of the detaining authority, as they are relevant and crucial".

It further reiterated the settled position that the detaining authority cannot mechanically act upon either the recommendations of the sponsoring authority or on the basis of the findings and opinion of the Police Agency investigating the crime.

"As held by the Full Bench, the particulars furnished by the Police authorities and the sponsoring authority will have to be subjected to scrutiny by the detaining authority, so as to arrive at a finding of its own, as to the various requirements contemplated under the statute. Further, it has been conclusively held that the detaining authority cannot be a prisoner of the finding of the Police investigating agency. There has to be due, proper and independent application of mind in that regard by the detaining authority".

The court made the observations in its decision on a writ of habeas corpus filed by the wife of the detenu against the detention order passed against him under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act. The detention order was passed in April in view of the involvement of the detenu in five crimes.

The bench noted that prior to the issuance of the instant detention order, the respondents had issued two other orders as well, against the very same detenu. The detention order that had been issued by the Detaining Authority dated 08.02.2008 as per which the detenu was arrested and detained on the very next day itself, was however set aside by the Division Bench of the High Court vide its judgment in June 2008.

The second detention order issued by the Detaining Authority in October 2020 was revoked by the Government on December 9, 2020, based on the opinion of the Advisory Board. 

Five main contentions had been raised before the court, and the bench delved upon each of these while deciding the case. 

Division Bench Findings

A. Unreasonable, unexplained delay between last prejudicial activity and date of detention order?

It was contended by the counsels on behalf of the petitioner that there had been an unreasonable and unexplained delay of 3 months and 24 days between the last prejudicial activity and the date of the detention order, due to which the live and proximate link between the two had been snapped, making the detention order liable to be interfered with. 

The Court perused the decision in Aswathy v. State of Kerala (2015), wherein the Kerala High Court had held that the time gap between the arrest of the accused and the date of the detention order which amounted to 2 months and 16 days, was satisfactorily explained inasmuch as the detenu-accused could be arrested only subsequently, and that the delay was not fatal in such a case. 

Refusing the contention regarding unreasonable delay, the court said: "...the Sponsoring Authority, who is none other than the District Police Chief of the entire District, will certainly take some time to get various inputs to give their recommendations and since it is the third detention order, certainly the Detaining Authority would also require reasonable time to take a proper and prudent decision in the matter", it noted while deciding so. 

B. Detaining Authority held 5th Crime to be basis for triggering action Under Section 13(2)(i) without due application of mind

The Court herein perused Section 13(2) of the Act which stipulates that, 

"revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, if he continues to be a person falling within the definition of known rowdy or known goonda as given in section 2(o) or section 2(p) and if: (i) after release, he is, found to have, again involved in an offence of the nature described in section 2(o) or section 2 (p) at least one instance; or (ii) the facts, which came to the notice of the Government or the authorised officer after the issuance of the earlier detention order, considered along with previously known facts are sufficient to cause a reasonable apprehension that he is likely to indulge in or promote or abet antisocial activities; or (iii) the procedural errors or omissions, by reason of which the first order was revoked, are rectified in the procedure followed with regard to the subsequent order, even if the subsequent order is based on the very same facts as the first order". 

The Court found herein that the detention order was proceeded with on the premise that the parameters of Section 13 (2)(i) of the Act were fulfilled since the detenu committed the 5th crime after the revocation of the previous detention order.

It perused the available materials before it and concluded that the entire version projected against the detenu in 5th crime was only on the basis of hearsay evidence. It observed that the materials available were too "tenuous and fragile" to enable the detaining authority to take a considered view that the detenu was involved in the said offence and he was thus, likely to commit further prejudicial anti social activities. 

None of the materials relied upon even remotely indicated that the detaining authority or the Government had a case that the said materials could be taken to disclose facts, in terms of Section 13(2)(ii), the court said. Thus, it found that the materials relied on in relation to the fifth crime, cannot be said to be proper and relevant materials, so as to disclose any serious offence, as alleged in the fifth crime against the detenu. 

C. All five crimes Including first four which were subject matter of the subjective satisfaction of the previous detention order, which was revoked, should be taken into account for determining subjective satisfaction under Section 3(1)

The Court relied on the decision in Radhika (2015), wherein the Full Bench of the Kerala High Court had held that, "when the earlier prejudicial activities, which led to the previously revoked detention order, are followed by subsequent prejudicial activity or activities, then all of them can be taken as a string of potent activities, which will sustain the continuity of the live-link, for the purpose of another order of detention and if the competent authority enters satisfaction as to the requirement to issue another detention order, taking into consideration all or any of the earlier prejudicial activities, along with the subsequent prejudicial activities, there is no illegality in that".

The Court thus found that in the instant case, all the five crimes, including the first four crimes, which was the subject matter of the subjective satisfaction of the previous detention order, which was revoked, should be taken into account. 

D. Effect of non-consideration of previous opinion of Advisory Board

The Advisory Board had found fault with the previous detention order on two grounds: firstly, that the cancellation of bail application was pending consideration before the court and it was within the realm of the Police to point out the urgency and press for orders in the said application, and secondly, that Section 107 Cr.P.C proceedings were also pending and thus, the remedy available in the ordinary laws for bail cancellation option, under Section 107 Cr.P.C proceedings, had not been examined or exhausted. It had also pointed out some procedural flaws. 

The Court found herein, that though it is true that even if the fifth crime is excluded, the first four crimes could be otherwise valid reasons for subjective satisfaction under Section 3(1), still, the procedural errors and omissions that had been specifically delineated by the Advisory Board in the previous opinion, and the reasons and grounds ought to have been duly taken note of by the detaining authority before deciding as to whether subjective satisfaction can be formed on the basis of those four crimes.

The Court also found that in the instant case, it was not clear whether a copy of the report of the Advisory Board, which was in favour of the detenu and the order of the Government revoking the detention order had been communicated by the State Government to the detaining and sponsoring authorities so as to enable them to consider any future detention order, if necessity thereof arises.

"In the light of these aspects, we have no hesitation to hold that the previous opinion of the Advisory Board, which led to the revocation of the previous detention order, and even the revocation of the previous detention order, are highly relevant and crucial materials which ought to have been examined and considered by the detaining authority before it had taken a decision", the court observed. 

It added that the opinion of the Advisory Board, in favour of the detenu, was binding on the Government as per Section 10(4), thus further emphasizing the relevance and crucial nature of those materials. 

The Court thus found that the non-consideration of these crucial and relevant materials of the previous opinion of the Advisory Board and requirements of Section 13(2)(iii) had vitiated the decision making process, which led to the subjective satisfaction in relation to the first four crimes

The impugned detention order was thus quashed and set aside. 

Advocate Ajeesh M. Ummer appeared on behalf of the petitioner in the instant case, while the respondents were represented by Government Pleader K.A. Anas. 

Case Title: Devika K.D. v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 608

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