Absence Of Proximate Link Between Prejudicial Activities Of Detenu And Purpose Of Detention Renders Detention Order Invalid: Kerala HC

While considering the fact that the prejudicial activity in which the detenu has indulged, is the occurrence in Crime No.360 of 2022 that took place on July 30, 2022, and the detention order was passed only after 5 months and 9 days, the Kerala High Court recently held 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.

At the same time, the High Court added that the unreasonable delay between the prejudicial activities of the detenu and the purpose of detention would create serious doubt as to the genuineness of the subjective satisfaction rendered by the detaining authority as to the live and proximate link.

The High Court held so, while answering to a criminal petition seeking a writ of habeas corpus directing the respondents to produce the body of Ajeesh, the son of the petitioner who is detained in terms of the order issued under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007, and set him at liberty.

Although the petitioner had sought relief on the premise that the detention of her son was illegal, the order passed by respondents proceeded on the premise that the detenu, who is a 'known rowdy' in terms of the provisions of the 2007 Act, needs to be detained to prevent him from committing further anti-social activities.

A Division Bench of Justice P.B Suresh Kumar and Justice C.S Sudha observed that “the procedural requirements under the Statute need to be complied with before issuing an order of detention and the reasonable time required for the same cannot be a reason to contend that the live and proximate link between the prejudicial activities and the purpose of detention is snapped”.

However, the Bench clarified that if the time consumed for complying with the procedural requirements is unreasonable, the same is a matter that would affect the validity of the order, for if the said delay is held to be a delay not affecting the validity of the order, it will appear that if additional particulars are required by the detaining authority for the due application of mind as to the need to detain the person concerned, the detention order can be passed at any time.

Advocate M.H Hanis appeared for the Petitioner, whereas Government Pleader K.A Anas appeared for the Respondent.

After considering the submissions, the Bench observed that the detenu has no case in the representations that the documents furnished to him in terms of the requirement under Section 7(2) of the 2007 Act are not legible and that he was, therefore, unable to prefer an effective representation against the order of detention.

If the detenu had no grievance either before the State Government or the Advisory Board that the right guaranteed to him under Article 22(5) of the Constitution has been infringed on account of the illegibility of the documents furnished to him, the Bench clarified that the ground raised by the petitioner in this regard is liable to be rejected.

The High Court also observed that the detaining authority is obliged under law to adopt procedures to expedite the consideration of the matter, for the administrative delay is no answer to a demand for liberty.

The High Court found from a perusal of the files of the detaining authority that though the sponsoring authority recommended detention as early as on Sep 22, 2022, additional particulars were sought by the detaining authority for the first time only on Oct 29, 2022.

“It is seen that the particulars sought for were given by the sponsoring authority to the detaining authority on 29.10.2022 itself. The next requirement of particulars came from the detaining authority only on 16.11.2022”, added the Court.

Accordingly, the Bench quashed the order of detention while concluding that the time consumed by the detaining authority for seeking additional particulars in the case on hand cannot be said to be reasonable, justifying the delay.

Cause Title: Ambika v. State of Kerala and Ors.

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