Anagha Bharghavan K vs State Of Kerala

A.Muhamed Mustaque, J

The petitioner is the wife of the detenu. He has been detained under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007. The detenu is involved in 5 crimes. They are Crime No.380/2021 of Vandoor Police Station, Crime No.174/2023 of Koothuparambu Police Station, Crime No.431/2023 of Kannur Town Police Station, Crime No.448/2023 of Pinarayi Police Station and Crime No.1275/2023 of Meenangadi Police Station.

The last prejudicial activity was on 07.12.2023. The detenu was arrested on 22.01.2024. After committing the last prejudicial activity, he was absconding. Thereafter, he surrendered before the Judicial First Class Magistrate Court – I, Sulthan Bathery on 22.01.2024. He was in judicial custody when the detention order was passed.

The detention order was passed on 15.02.2024. It is stated in the detention order that, the detenu was absconding. But actually on the date of detention order, he was in judicial custody. The detention order was executed only on 25.02.2024, after the ten days of detention order.

The question is whether there was an application of mind while passing the detention order and the delay occasioned in executing the order was fatal or not.

In Manju Nahar v. Union of India and others [1999 (4) SC 116], the Apex Court held as follows :-

“This object can be achieved if the order is immediately executed. If, however, the authorities or those who are responsible for the execution of the order, sleep over the order and do not execute the order against the person against whom it has been issued, it would reflect upon the “satisfaction” of the detaining authority and would also be exhibitive of the fact that the immediate necessity of passing that order was wholly artificial or non-existent.”

Even though there is a gap in executing the detention order, it will not vitiate the detention, if a proper explanation is offered by the official respondents for delay in execution.

This Court, in the judgment dated 22.05.2024 in W.P. (Crl.) No.231 of 2024, in paragraphs 14 and 15, held as follows :-

“14. The mere fact that there was some gap of time in executing the detention order will not vitiate the detention, if proper explanation is is offered by respondents for the delay in executing the detention order. In other words, every delay will not necessarily lead to vitiation of the detention, if there are sufficient reasons shown for the time taken to execute the detention order.

Here, in the case on hand, we note that no reasons have been offered by respondents for the delay of about 14 days in executing the detention order, despite the detenu being in judicial custody. It is not discernible from the counter affidavit filed by the 2nd respondent as to when the learned jurisdictional Magistrate was approached with an application for permission to execute Ext.P1 order of detention. It is also not stated as to when such permission was obtained and as to why a period of about two weeks was required for executing the detention order.”

In this case, the reason for delay was explained stating that the detenu was absconding. In fact, the detenu was in judicial custody. That means there was absolutely no application of mind while passing the detention order and there is no reason offered for delay in execution.

In the light of the above, we are of the view that continuance of the detention of the detenu is illegal and he shall be released forthwith, if his custody is not otherwise required under law.

This writ petition is disposed of accordingly.