VILASINI RAMACHANDRAN v. STATE OF KERALA

2025:KER:31849

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR & THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN FRIDAY, THE 11 TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947 WP(CRL.) NO. 162 OF 2025 PETITIONER:

VILASINI RAMACHANDRAN

AGED 61 YEARS

W/O RAMACHANDRAN, KALLIDUMBIL HOUSE,

NEDUNGAPRA P.O, VENGOOR, ERNAKULAM - 683545

BY ADVS.

M.H.HANIS

T.N.LEKSHMI SHANKAR

NANCY MOL P.

ANANDHU P.C.

NEETHU.G.NADH

RIA ELIZABETH T.J.

SINISHA JOSHY

SAHAD M. HANIS

RESPONDENTS:

1 STATE OF KERALA

REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001

2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE CIVIL STATION, ERNAKULAM - 682030

3 THE DISTRICT POLICE CHIEF

REVENUE TOWER, ERNAKULAM - 682035

4 THE CHAIRMAN

ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA ERNAKULAM - 682026

5 THE SUPERINTENDENT OF JAIL

CENTRAL JAIL, VIYYUR, THRISSUR - 670004

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BY ADVS.

ADVOCATE GENERAL OFFICE KERALA

ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)

THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 10.04.2025, THE COURT ON 11.04.2025 DELIVERED THE FOLLOWING:

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JUDGMENT

Jobin Sebastian, J.

This writ petition has been directed against an or der of detention dated 28.12.2024 passed against one Amal, S/o. Rama chandran, under Section 3(1) of the Kerala Anti-Social Activities ( Prevention) Act, 2007 (‘KAA(P) Act’ for brevity). The petitioner herein i s the mother of the detenu. Upon considering the opinion of the Advisor y Board, the Government vide order dated 17.02.2025 has confirme d the order and the son of the petitioner has been ordered to be detain ed for a period of one year.

2. The records reveal that a proposal was submitted by the District Police Chief, Ernakulam, seeking initiation of proceedings under Section 3(1) r/w 13(2)(i) of the KAA(P) Act before the jurisdictional authority. For the purpose of initiation of the sai d proceedings, the detenu was classified as a 'known rowdy' as defined under Section 2(p)(iii) of the KAA(P) Act. For passing the order of detention the authority reckoned eight cases in which the detenu got involved. The c ase registered with respect to the last prejudicial activity is Crime N o.1114/2024 of Kuruppampady Police Station alleging the commission of offences

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punishable under Sections 127(2), 351 r/w 3(5) of Bh aratiya Nyaya Sanhita (for short “BNS”).

3. We heard Sri.M.H.Hanis, the learned counsel appearin g for the petitioner and Sri. K.A. Anas, the learned Government Pleader.

4. The learned counsel for the petitioner would su bmit that the impugned order was passed by the jurisdictional aut hority without proper application of mind and without arriving at the requ isite objective as well as subjective satisfaction. According to the couns el after passing the impugned order of detention, the jurisdictional aut hority did not forward the order to the Government forthwith and the said lapses itself will vitiate the impugned order. The learned counsel further submitted that the above action of the jurisdictional authority is violative of the provision contained under Section 3(3) of the KAA(P) Act. According to the counsel, the sponsoring authority forwarded the proposal on the basis of a report submitted by the SHO of Kuruppampady Police Station. But, as there were some shortcomings in the said report, in order to u ndo the same, another report was forwarded by the SHO. However, the copy of the said additional report was not served on the detenu. Th e learned counsel further submitted that, though on behalf of the det enu, he prepared a representation for being forwarded to the Governmen t and sent to the Jail

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Superintendent concerned, the latter in turn sent ba ck the said representation to the counsel for the petitioner hi mself without sending the same to the Government. According to the counse l, the said malfeasance on the part of the Jail Superintendent wi ll seriously affect the constitutional as well as statutory right of the det enu and the impugned order is liable to be set aside on the said sole ground.

5. In response, the learned Government Pleader w ould submit that the order of detention impugned by way of this writ petition was passed by the jurisdictional authority after proper applic ation of mind. According to him the contention of the learned counsel for th e petitioner that the copy of the impugned order was not forthwith forward ed to the Government is baseless. The learned Government Pleader submitted that the failure to serve the detenu with a copy of the SHO’s additional report is of minimal consequence, as the jurisdictional autho rity did not rely on that report in issuing the impugned order, but instead based its decision on the proposal submitted by the Superintendent of Police. The learned Government Pleader fairly conceded that the represe ntation prepared on behalf of the detenu by his counsel and sent to the Jail Superintendent, which was meant for forwarding to the Government, wa s sent back to the counsel for the petitioner. But this was done at t he detenu’s own request.

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Moreover, another representation, which is the verb atim reproduction of the representation sent to the Jail Superintendent, was duly forwarded to the Advisory Board by the mother of the detenu who i s the petitioner in this writ petition. Hence, as the matter was alrea dy seized of by the Advisory Board if at all the representation was for warded to the Government, the latter could not act upon it and ha d to wait till the opinion of the Advisory Board was obtained. Accordi ng to the learned Government Pleader, therefore no prejudice is caused to the detenu due to the non-forwarding of the representation to the Government.

6. The records reveal that the detenu was classif ied as a “known rowdy”, considering his recurrent involvement in eight cases. The last case registered against the detenu is Crime No.1114/2024 of Kuruppampady Police Station, alleging the commission of the offen ces punishable under Sections 127(2), 351 r/w 3(5) of BNS. The detenu, w ho is arrayed as the 1st accused in the said case was arrested on 19.10. 2024. As all offences alleged in the said case are bailable in nature, he was released on bail on the same day itself. However, when he was arrested i n connection with the last prejudicial activity, his arrest was recor ded in the last previous crime registered against him as Crime No.1093/2024 and he was enlarged on bail in the said case on 15.11.2024. It was on 04.12.2014, the

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Superintendent of Police, Ernakulam forwarded the pr oposal for initiation of proceedings under the KAA(P) Act against the det enu. Subsequently, the detention order was passed on 28.12.2024 withou t any unreasonable delay. The sequence of the events clearly demonstr ates that there is no delay either in mooting the proposal as well as in p assing the impugned order. Therefore, the detenu could not be heard to say that the live link between the last prejudicial activity and the purpo se of detention was snapped.

7. While coming to the various contentions presse d into service from the side of the learned counsel for the petiti oner, it can be seen that one of the contentions is that, after passing the i mpugned order, the jurisdictional authority failed to forward the copy of the detention order to the Government undermining the provisions contained under Section 3(3)

of the KAA(P) Act. We do agree that it is a statut ory obligation of the jurisdictional authority to forward the detention o rder forthwith to the Government for approval. However, a bare perusal o f the order itself reveals that a copy of the impugned order is duly m arked to the Government. In the absence of any contra materials, it could not be found that the order was not communicated to the Governme nt forthwith.

Therefore, the only conclusion that can be arrived at is that the contention

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of the detenu regarding the non-forwarding of the c opy of the order forthwith to the Government is baseless.

8. According to the counsel, the sponsoring autho rity mooted the proposal for the initiation of proceedings under th e KAA(P) Act against the detenu on the basis of a report submitted by the SHO of Kuruppampady Police Station. But, as there were some shortcomings in the said report, in order to remedy the same, an additional report was forwarded by the SHO. However, the copy of the said additional report was not served on the detenu. We are cognizant that it is incumbent u pon the jurisdictional authority to serve the copy of the detention order as well as the grounds of detention to the detenu along with the documents relied upon by it in passing the order. As evident from the records, it was after obtaining the report of the SHO concerned, that the sponsoring au thority i.e. the Superintendent of Police Ernakulam, forwarded the pr oposal to the jurisdictional authority to initiate proceedings under KAA(P) Act. Moreover, it is gatherable that on verification of the initia l report of the SHO, some shortcomings were noted by the Superintendent of Poli ce and accordingly, an additional report was also submitted by the SHO t o undo the flaws in the earlier reports. It was after considering the s aid report, the Superintendent of Police mooted the proposal. Anyho w, it was not on the

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basis of the report of the SHO, the jurisdictional a uthority acted upon. On the other hand, it was on the basis of the proposal submitted by the Superintendent of Police, the jurisdictional authori ty ventured to pass the impugned order of detention. Even the detenu is no t having a case that the copy of the proposal submitted by the Superinten dent of Police was not served on him. In short, it is liable to be he ld that the non-service of the copy of the additional report of SHO is of littl e significance particularly when the same is not a relied upon document.

9. Another contention taken by the learned counsel for the detenu is that, on behalf of the detenu he prepared a repr esentation for being forwarded to the Government and sent the said repre sentation to the Jail Superintendent concerned for forwarding the same aft er obtaining the signature of the detenu. However, instead of forward ing the same to the Government, the Jail Superintendent sent back the s aid representation to the counsel for the detenu. According to the learn ed counsel, the said malfeasance on the part of the Jail Superintendent wi ll certainly affect the constitutional as well as statutory right of the det enu. We do agree that it is an indefeasible right of a detenu to file repres entations before the Government as well as the Advisory Board challengin g an order of detention passed against him. Therefore, the Jail Superintendent ought to

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have forwarded the representation sent to him by th e counsel for the detenu to the Government after obtaining the signat ure of the detenu.

The covering letter addressed to the Jail Superinten dent and the postal receipts produced by the learned counsel for the de tenu reveal that a representation was duly sent to the Jail Superinten dent for forwarding the same to the Government. Nevertheless, the said rep resentation was sent back by the Jail Superintendent to the counsel for t he detenu after obtaining the detenu’s signature, instead of sendin g the same to the Government. The said fact is evident from the post al cover and the copy of the representation which contains the signature of the detenu pressed into service by the learned counsel for the petitio ner. The afore-mentioned postal receipt, covering letter as well as the representation bearing the signature of the accused , which is handed over by the counsel for the petitioner at the time of he aring of this petition and the genuineness of which is not disputed by the Gov ernment Pleader shall form part of the record of this case.

10. Now the crucial question to be considered is w hether the said lapses will infringe the constitutional right of th e detenu. While considering the said question, it is to be noted th at, a representation which is the verbatim reproduction of the representa tion prepared by the

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counsel for the accused for being forwarded to the Government, was sent to the Advisory Board directly by the mother of the detenu who is the petitioner in this writ petition. After considerin g the said representation the Advisory Board formed an opinion. The said opi nion was forwarded to the Government with the representation addressed to the Advisory Board.

The Government in the matter of approving the deten tion considered the representation forwarded by the Advisory Board as if it is one addressed to the Government. Thereafter, the Government indepen dently considered the representation and the fate of the representati on was communicated to the detenu. Hence it cannot be said that the co nstitutional right of the detenu is infringed in any manner. More pertinentl y, even if the representation was received by the Government, the Government could not have considered it, as the matter was already s eized by the Advisory Board. Therefore, we are of the considered view tha t the detenu was in no way prejudiced by the malfeasance on the part of the jail Superintendent in sending back the representation to the counsel for the detenu instead of forwarding the same to the Government.

11. From a perusal of the records, we are satisfi ed that all the necessary procedural requirements before passing an order under Section 3(1) of the KAA(P) Act have been scrupulously compl ied with in this case.

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We are further satisfied that the competent authority passed the detention order after thoroughly verifying all the materials placed by the sponsoring authority and after arriving at the requisite objec tive and subjective satisfaction. Therefore, it cannot be said that the order passed under Section 3(1) of the KAA(P) Act is vitiated in any manner.

In view of the discussion above, we hold that the p etitioner has not made out any case for interference. Hence, the writ petition stands dismissed.

Sd/-

P.B. SURESH KUMAR

JUDGE

Sd/-

JOBIN SEBASTIAN

JUDGE

ANS

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APPENDIX OF WP(CRL.) 162/2025

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE ORDER NO.DCEKM/12936/2024/M7 DATED 28.12.2024 F THE 2ND RESPONDENT

Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED 04.02.2025 SUBMITTED BY THE DETENU BEFORE THE 1ST RESPONDENT

Exhibit P3 A TRUE COPY OF THE REPRESENTATION DATED 04.02.2025 SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT

Exhibit P4 A TRUE COPY OF THE POSTAL RECEIPT EVIDENCING THE ISSUANCE OF EXT P3