Detaining Authority Must Be Aware That Detenu Is Already In Custody & Must Show Compelling Reasons To Pass Preventive Detention Order: Kerala HC

The Kerala High Court recently reiterated the settled position that an order of preventive detention can be passed against a person who is already in custody, subject to the condition that the detaining authority is aware of the detenu already being in detention, and secondly, that there are compelling circumstances justifying such preventive detention. 

The Division Bench comprising Justice Alexander Thomas and Justice Sophy Thomas added that the detaining authority must be satisfied from the material produced before it that the detenu is likely to be released from custody in the near future whereafter, he is very likely to indulge in further prejudicial activities.

The observations were made while setting aside the preventive detention orders where the authority concerned had not taken the said aspects into consideration.

"...it is by now well settled that an order of detention can be validly passed against a person, who is already in custody, subject to the condition that the detaining authority must necessarily be aware of the fact that the detenu is already in detention and secondly, there are compelling reasons justifying such preventive detention, despite the fact that the detenu is already in detention and for the latter component of compelling reasons, it has to be established that cogent materials are available before the detaining authority, on the basis of which it is satisfied that the detenu is likely to be released from custody in the near future and that therefore, taking into account the antecedents of the detenu, he is very likely to indulge in further prejudicial activities after his release from custody and that therefore, his preventive detention is highly necessary and imperative". 

Brief Facts:

Based on a report furnished by the District Superintendent of Police (sponsoring authority), the District Magistrate concerned (2nd respondent herein), issued an order directing preventive detention of the husband of the petitioner herein, in order to prevent him from committing further prejudicial anti-social activities.

DSP's report had recommended the preventive detention of the said person under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'KAAP Act'). State government (1st respondent herein) also approved the detention order and referred the matter to the statutory Advisory Board for their opinion under Section 9 of the Act, which in turn recommended that there was sufficient cause for the preventive detention of the detenu.

Subsequently, the detention order was confirmed by the Government for six months. It was further found by the sponsoring authority and the 2nd respondent that there were about 9 cases in which the detenu had been involved, and regarding which there were no serious disputes. Additionally, the detenu also satisfied the parameters of a 'known rowdy' under Section 2(p)(iii) read with Section 2(t) of the Act.

It is in this context that the instant writ petition was filed by the wife of the detenu. It was claimed that there is violation of the mandate contained in the first limb of Section 3(3) of the Act, which demands that detention order along with relevant documents shall be forthwith communicated by the authorised detaining authority to the State Government. Petitioner further contended that the detaining authority was unaware that the detenu was in judicial custody, on account of bail cancellation.

The State argued that though the first limb of Section 3(3) of the Act stipulates that the authorised detaining authority should forthwith communicate the detention order to the State Government, the timeline of 12 days is stipulated only in the second limb of the provision which mandates that the Government should approve the detention order within 12 days from the date of detention. Thus, it was contended that so long as the timeline of 12 days is complied with by the State Government, mere delay on part of detaining authority in communicating the detention order to the State will not vitiate the decision making process.

Findings of the Court:

So far as arguments relating to Section 3(3) are concerned, the High Court rejected State's contention. It held,

"State Government should have the requisite materials to decide on the question of approval of the detention order well in advance and it is for this purpose that it has been exclusively mandated, in the first limb of Section 3(1), that the authorised detaining authority is under the statutory obligation and mandate to forthwith send the detention order along with all the relevant documents to the State Government."

The Court formulated that the issue was therefore as to whether the mandate contained in the first limb of Section 3(1) of the KAAP Act had been complied with in this case, inasmuch as it had to be ascertained as to whether the detaining authority had forthwith sent the detention order and the relevant materials to the State Government.

At this juncture, the Court took due note of the submissions made by the Public Prosecutor, K.A. Anas on behalf of the respondent authorities that the District Magistrate, had forthwith intimated the Government about the issuance of the detention order as per Section 3(3) of the Act, and that he had also duly forwarded the detention order and other relevant materials to the State Government and the Director General of Police, immediately after the issuance of the detention order and that all the relevant documents were also handed over to both the Government and the State Police Chief through special messenger.

Finding that the aforementioned submissions in the counter affidavit had not been controverted, the Court rejected Petitioner's contention.

So far as the argument regarding the detaining authority being unaware of the bail cancellation (in seventh case out of the nine cases) is concerned, the High Court concurred that there had been total non consideration of the vital and crucial aspects, regarding the impact of the bail cancellation order and as to whether it was really necessary and imperative to issue the order of detention.

"In other words, for the reasons not known to us, the detaining authority was completely unaware about the fact that the Prosecution Agency had earlier filed a bail cancellation application and that the said application was duly allowed by the Magistrate on 28.03.2022, resulting in the bail granted to the detenu being cancelled and he was later remanded on 26.04.2022. So, even the basic facts regarding the above said crucial and relevant aspects were totally unknown to the 2 nd respondent-detaining authority, while he issued the impugned Ext.P6 detention order on 27.04.2022. Hence, the decision making process, in this regard, is fatally affected", the Court determined.

It was in this context that the Court quashed the impugned detention order.

Advocate P.K. Ravisankar appeared on behalf of the petitioner in the instant case, while the respondents were represented by Public Prosecutor K.A. Anas. 

Case Title: Rishada Haris K.P. v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 590

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