Delayed Preventive Detention Not Having 'Proximate Link' With Prejudicial Activity Infringes Detenu's Article 21, 22 Rights: Kerala High Court

A Division Bench comprising Justice P.B. Suresh Kumar and Justice P.G. Ajithkumar observed that detention after prolonged delay creates a serious doubt regarding the genuineness of the detention order.

“...the unreasonable delay between the prejudicial activities of the detenu and the purpose of detention would create a serious doubt as to the genuineness of the subjective satisfaction rendered by the detaining authority as to the live and proximate link,” Court observed.

The petitioner had approached the High Court in a Habeas Corpus petition seeking release of his son who was detained under the Narcotic Drugs and Psychotropic Substances Act, 1988 for an alleged incident that took place in 2020. The case was registered under Sections 20(b)(ii) C (punishment for contravention in relation to cannabis plant and cannabis in commercial quantity) , 27A (punishment for financing illicit traffic and harbouring offenders) and 29 (punishment for abetment and criminal conspiracy) of the Act. The impugned detention order was issued only in the year 2023 after a period of over two years.

The Court noted that the alleged incident occurred in November 2020 and the detention order was issued in July 2023, after a delay of two years and eight months. The Court found that detention orders are issued against the detenu for preventing him from committing further illegal activities and there must be a proximate and live link between the prejudicial activities committed by the detenu and the issuance of detention order. The Court held that detention orders issued after a long delay will not serve the purpose of detention and will result in infringement of fundamental rights under Article 20 and 21 of the Constitution.

“There cannot be any doubt that there has to be a live and proximate link between the prejudicial activities of the detenu and the purpose of detention, for otherwise, the purpose of detention will not be served, and the order of detention would result in infringement of the fundamental rights guaranteed to the detenu under Articles 21 and 22 of the Constitution.”

The Court found that the respondents have no case that the detenu was involved in any other prejudicial activities in between the 2020 and 2023. It also noted that the maximum period of detention under the statute was for a period of one year, the delay of issuance of two years and eight months in issuance of detention order cannot be justified.

The Court quashed the detention order against the petitioner’s son.

Counsel for the Petitioner: Advocates Peeyus A Kottam, Ragesh Chand and Gentle C D

Counsel for the respondents: Public Prosecutor K A Anas

Citation: 2023 LiveLaw (Ker) 502

Case title: K V Binoy V State of Kerala

Case number: W.P.(Crl) No.847 of 2023

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