Manoj Abraham John vs State Of Kerala & Ors.

“15.

The materials disclosed demonstrate a considerable delay at every stage of the proceeding. The grounds of delay in passing the order of detention appear to be mechanical and the sufficiency of the bail conditions are not being properly taken into consideration. When the sponsoring authority submitted the proposal for preventive detention, the detenu was in custody. On 18^th December, 2025, he was granted bail. Merely because the detenu was arrested on 8^th October, 2022 for a similar offence in which he was granted bail on 8^th December, 2022, could not furnish a ground for passing an order of detention in respect of the alleged offence committed on 23^rd October, 2025, in which the detenu was granted bail on 18^th December, 2025. The stringency of the bail conditions have not been considered at all. It would be reasonable to assume that if the detaining authority was really and genuinely satisfied after proper application of mind with the materials before him that it was necessary to detain the detenu with a view to prevent him from acting in a prejudicial manner, he would have acted with greater promptitude both in making the order of detention and also in securing the arrest of the detenu and the detenu would not have been allowed to remain at large for such a long period of time to carry on his alleged prejudicial activities. There has been a considerable delay in considering the proposal received from the sponsoring authority for preventive detention. The delay has not been properly explained. If the detenu was at all a serious threat and his free movement is going to be prejudicial and dangerous, the authority should have acted with no promptitude. We have considered the decisions of this Court where the delay was considered fatal and the decisions of the Hon'ble Supreme Court in this regard.

“5.

We have no doubt in our minds about the role of the Court in cases of preventive detention; it has to be one of eternal vigilance. No freedom is higher than personal freedom and no duty higher than to maintain it unimpaired. The Court's writ is the ultimate insurance against illegal detention. The Constitution enjoins conformance with the provisions of Article 22 and the Court exacts compliance. Article 22(5) vests in the detenu the right to be provided with an opportunity to make a representation. Here the Law Report tell a story and teach a lesson. It is that the principal enemy of the detenu and his right to make a representation is neither high handedness nor mean mindedness but the casual indifference, the mindless insensibility, the routine and the red tape of the bureaucratic machine. The four principles enunciated by the Court in Jayanarayan Sukul v. State of West Bengal as well as other principles enunciated in other cases, an analysis will show, are aimed at shielding personal freedom against indifference, insensibility, routine and red tape and thus to secure to the detenu the right to make an effective representation. We agree: (1) the detaining authority must provide the detenu a very early opportunity to make a representation, (2) the detaining authority must consider the representation as soon as possible and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes it report, and (4) the consideration by the detaining authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage. We however, hasten to add that the time imperative can never be absolute or obsessive. The Court's observations are not to be so understood. There has to be lee way, depending on the necessities (we refrain from using the word 'circumstances') of the case. One may well imagine a case where a detenu does not make a representation before the Board makes its report making it impossible for the detaining authority either to consider it or to forward it to the Board in time or a case where a detenu makes a representation to the detaining authority so shortly before the Advisory Board takes up the reference that the detaining authority cannot consider the representation before then but may merely forward it to the Board without himself considering it. Several such situations may arise compelling departure from the time imperative. But no allowance can be made for lethargic indifference. No allowance can be made for needless procrastination. But, allowance must surely be made for necessary consultation where legal intricacies and factual ramifications are involved. The burden of explaining the necessity for the slightest departure from the time imperative is on the detaining authority.

6.

We notice that in Narendra Purshotam Umrao v. B. B. Gujral, the detenu made his representation on 4th and 6th of March, 1978, the Advisory Board gave a hearing on 13th March and the detaining authority rejected the representation on 18th March. The Court persued the records of the Government and the Advisory Board and concluded that there was no infraction of the Constitutional safeguard in Article 22 (5). It was held, with reference to the records, that the Government had taken a decision uninfluenced by what transpired at the hearing before the Board. The matter was found to have been dealt with by the Government at all levels and the detaining authority had come to independent conclusion of his own by applying his mind to the facts and circumstances of the case.

7.

We have already expressed our agreement with the four principles enunciated in Jayanarayan Sukul v. State of West Bengal. We would make one observation. When it was said there that the Government should come to its decision on the representation before the Government forwarded the representation to the Advisory Board, the emphasis was not on the point of time but on the requirement that the Government should consider the representation independently of the Board. This was explained in Nagendra Nath Mandal v. The State of West Bengal 1972 (1) SCC 498 at P. 504. In Sukul's case the Court also made certain pertinent observations (at pages 231-232) :

"No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible....."

8.

In Prabhakar Shankar Dhuri v. S. S. Pradhan [(1971) 3 SCC 896 (2)] and Kantilal Bose v. State of West Bengal [AIR 1972 SC 1623] delay of 16 days and 28 days respectively in disposing of the representation of the detenu was considered sufficient to vitiate the detention. On the other hand, the Nagendra Nath Mandal v. The State of West Bengal, a delay of 34 days was held not to affect the validity of the detention as part of the delay was explained by the circumstances that the records of the case had been sent to the Advisory Board and part of the delay was explained by the enquiries which the Government had to make. The Court observed :

"That fact is not disputed before us and so also the fact that those records showed that on June 7, 1971, Government had sent the files in connection with the petitioner's case and his representation to the Advisory Board. As soon as the representation was returned to it, Government considered it and rejected it but that was before the Board made its report and sent it to Government. But counsel urged that this fact may explain the lapse of time from the date that the records were sent and the date when they were returned, but not the delay between May 27, 1971 and June 7, 1971, during which Government could have arrived at its decision. That argument has not much force, because in a given case Government may not be able to reach a proper conclusion within a short time especially, in a case where another authority, in this case the District Magistrate, has passed the questioned order. It might have to make inquiries as to the situation in the locality, the nature of and the circumstances in which detention was found necessary, the previous history of the person detained etc. Therefore, it is difficult to agree with counsel that Government should nave reached its conclusion during the said period. There can be no hard and fast rule with regard to the time which Government can or should take, and that each case must be decided on its own facts".

9.

We may now consider whether the facts here disclose a disregard to the petitioner's constitutional right as claimed by his counsel in his second and third submissions. The petitioner's request for copies of statements and documents was received by the detaining authority on December 3, 1979, and at the instance of the detaining authority, the Director of Revenue Intelligence furnished the copies sought on December 7, 1979. The authorities who laid the information before the detaining authority and who were primarily concerned in the matter were the Customs authorities via the Director of Revenue Intelligence. So the detaining authority directed the Director of Revenue Intelligence to furnish copies of the documents and it was so done. There was no delay in furnishing of documents and no legitimate complaint could be made on that score. The detenu's representation was received by the detaining authority on December 26, 1979. Without any loss of time copy of the representation was sent to the Customs authorities for their remarks. That was obvious necessary because the information leading to the order of detention was laid by the Customs authorities. The facts were undoubtedly complex since the allegations against the detenu revealed an involvement with an international gang of dope smugglers. The comments of the Customs authorities were received on January 4, 1980. The Advisory Board was meeting on January 4, 1980 and so there could be no question of the detaining authority considering the representation of the detenu before the Board met, unless it was done in great and undue haste. After obtaining the comments of the Customs authorities, it was found necessary to take legal advice as the representation posed many legal and constitutional questions. So, after consultation with the Secretary (Law and Judicial) Delhi Administration, the representation was finally rejected by the Administrator on January 15, 1980. These facts are stated in the counter affidavit filed on behalf of the Delhi Administration and are substantiated by the records produced before us. If there appeared to be any delay, it was not due to any want of care but because the representation required a thorough examination in consultation with investigators of facts and advisers on law. We have ourselves examined the records and we find that though the Administrator considered the representation of the detenu after the hearing by the Board, the Administrator was entirely uninfluenced by the hearing before the Board. The application for the issue of a Writ of Habeas Corpus is therefore dismissed”. (Underline supplied)

“7.

Another submission of the learned Counsel was that there was considerable delay in the disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned Counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India [(1980) 4 SCC 525 : 1981 SCC (Cri) 19 : AIR 1981 SC 92] and in Shanker Raju Shetty v. Union of India [ Writ Petition No. 640 of 1980, decided on June 26, 1980] . We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra [(1980) 2 SCC 275 : 1980 SCC (Cri) 419 : (1980) 2 SCR 1095] “the time imperative can never be absolute or obsessive”. The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae. Considered in that light, can it be said that there was any unreasonable delay in the present case? The representation was despatched on February 5, 1981 and was received in the office of the detaining authority on February 13, 1981. Apparently it was in postal transit from 5th to 13th. It was put up before the detaining authority on February 19, 1981 and disposed of that very day. From the records produced before us we notice that the detaining authority, Shri. B.B. Gujaral, was not available from 13th to 16th as he had gone abroad. He returned on 16th and considered the matter on 19th. The learned counsel for the detenu urged that the absence of the detaining authority from India cannot be allowed to violate the fundamental right of the detenu to have his representation considered with the utmost expedition. We agree that in such cases appropriate arrangements must be made for considering the detenu's representation. Apparently, it was not thought necessary in the present case as Shri Gujaral was returning on 16th, that is, within a few days. After the 16th the delay, if any, was for a period of three days only. It can hardly be described as delay though one wishes there was no room even for that little complaint. We are of the view that there has not been any unaccountable or unreasonable delay in the disposal of the representation by the detaining authority.”

“12.

It is not the delay alone that matters. If the delay in passing the order of detention is unexplained and inordinate, it could be said that the live link between the prejudicial activity and the order of detention is snapped. It is not a mechanical test that can be applied in the matter of ascertaining whether the live link is snapped. If the delay is satisfactorily explained, it cannot be held that the live link is snapped. The KAA(P) Act does not provide that if the period of six moths from the last prejudicial activity expires, no order of detention can be passed. The Legislature in its wisdom did not think that an order of detention cannot be passed after the expiry of the period for which a person can be detained under Section 3, reckoning the period from the date of the last prejudicial activity to the order of detention. The period of detention under Section 3 as such cannot be a determining factor to assess whether there is inordinate and unexplained delay. The facts and circumstances of the case are relevant in each case. Reasons may be varied as to why the order of detention is passed after several months of the date of the last prejudicial activity. If the person concerned is in judicial custody and there is no likelihood of his being released shortly, the detaining authority may stay its hands for a short while and think of passing an order of detention subsequent to the release of the person concerned. It is not necessary that the person concerned should commit another crime after the expiry of his judicial custody (in the crimes already registered and pending investigation) in order to enable the detaining authority to pass an order of detention. In short, the facts situation in each case makes it relevant the question whether the delay is inordinate so as to vitiate the order of detention on the ground of lack of live nexus between the prejudicial activity and the order of detention.

13.

In the present case, the order of detention specifically refers to the reasons why the order of detention was passed after a lapse of few months from the date of the last prejudicial activity. Apart from stating that the investigation of the last crime was pending and the charge - sheet in that case was filed on 16.04.2015, the detaining authority also referred to the judicial custody of the detenu and his release on bail on 07.08.2015. We are of the view that the detaining authority has satisfactorily explained the delay in passing the order of detention”. (Underline supplied)

“11.

A close reading of the judgments referred to above would show that even if delay has occurred, it can be fatal to an order of detention, only if the delay is unexplained. Therefore, the question to be considered in this case is whether, on facts, it can be held that any delay has occurred and if delay has occurred, whether it has been explained or not.

12.

In so far as this case is concerned, it is true that the last prejudicial activity alleged against the detenu was on 26.05.2013 and Ext.P1 order of detention was passed only on 25.09.2013. However, while examining this issue, the peculiarity of this case that 9 criminal cases relied on by the detaining authority in Ext.P1 order were allegedly committed by the detenu within the jurisdiction of six police stations, viz., Puthukkad, Peechi, Ollur, Cherppu and Thrissur East Police Station. It was relying on these cases that the Sub Inspector of Police, Ollur Police Station, within whose jurisdiction also cases are registered, made the preliminary report dated 10.08.2013, based on which, Ext.P3 report under Section 3(1) of the Act was made by the sponsoring authority to the detaining authority.

13.

Admittedly, to attract section 2(p)(iii) of the Act, the person concerned must be alleged to have committed at least three offences of the nature specified in the section within a period of 7 years. Therefore, the Sub Inspector of Police, Ollur Police Station could have made the preliminary report on 10.8.2013 only after collecting details from the other 5 Police Stations. We cannot expect him to have completed this process within any unrealistically short period and in the process if he has taken a reasonable time, we cannot find fault with him for having delayed his report. On receipt of the report dated 10.8.2013, the third respondent made his report under Section 3 of the Act on 17.8.2013. Similarly, the second respondent could not have mechanically acted upon the report and passed Ext.P1 order and could have passed the order only after due application of mind and on evaluating the entire materials made available to him. If that be so, Ext.P3 report dated 17.8.2013 made by the third respondent to the second respondent or Ext.P1 order passed by the second respondent on 25.9.2013 cannot be said to be vitiated by delay. For these reasons, on the facts of this case, we are not in a position to hold that in the light of the principles laid down by the Apex Court or this Court in the judgments referred to above, Ext.P1 order is illegal on the ground of delay”. (Underline supplied)

“9.

In Hemlata Kantilal Shah v. State of Maharashtra (1981 (4) SCC 647), the Apex Court had observed that delay ipso facto in passing an order of detention after an incident is not fatal to the detention of a person, for, in certain cases, delay may be unavoidable and reasonable. What is required by law is that the delay must be satisfactorily examined by the detaining authority. The mere passage of time before issuing a detention order following an incident does not automatically invalidate the detention, as delays may sometimes be unavoidable and reasonable. However, the law mandates that any delay must be thoroughly and satisfactorily justified by the detaining authority. In the present case, the delay has been attributed to the time required to gather records from various police stations and jurisdictional courts. This justification is unacceptable, particularly in light of the fact that the Kerala Police Department has implemented an integrated core policing system, known as 'iCoPS,' to replace the existing Crime and Criminal Tracking Network and Systems (CCTNS). With this advanced technology, the police have the capability to quickly and efficiently access all relevant information about an offender. Given these technological advancements, the respondents' claim that they had to spend much time to collect the necessary details is untenable. The failure of the police department to leverage the available technology to expedite the process and instead offer weak excuses for the delay undermine the principles of personal liberty that are to be scrupulously adhered to before venturing to preventively detain a citizen. Such explanations are not only unsatisfactory but also incompatible with the duty to protect an individual's right to timely and just legal processes. As observed by M. N. Venkatachaliah, J in Ayya v. State of U.P. [(1989) 1 SCC 374], under our Constitution, the mandate is clear and the envoy is left under no dilemma. The constitutional philosophy of personal liberty is an idealistic view, the curtailment of liberty for reasons of State's security, public order, disruption of national economic discipline, etc. being envisaged as a necessary evil to be administered under strict constitutional restrictions”. (underline supplied)