Vyshna K vs State Of Kerala

A.Muhamed Mustaque, J.

The order of detention is called in question before us. We are not looking at the merit of the arguments of the learned counsel for the petitioner based on the provision under Section 2(b) (3) of the Kerala Anti-social Activities (Prevention) Act, 2007 (for short, the 'KAA(P)A'). We are interfering with the order of detention for the reason that there was a long delay involved in the execution of the detention order. The order of detention was passed on 21.10.2022 and it was executed only on 06.06.2023. The detenu was treated as an absconder. The procedures as referrable under Section 6 of KAA(P)A have been followed by publication in the official gazette. But in this case, absolutely there is no explanation in regard to the procedure that is to be followed in a criminal court in regard to procuring the presence of the absconder in terms of the Criminal Procedure Code. Today, in W.P.(Crl.) No.889/2023, we have held that the detention order would operate as a warrant and the Magistrate will have to follow the procedure for securing the presence of the absconding accused under the Criminal Procedure Code based on the report of detention under Section 6(1)(a) of KAA(P)A. If there is no explanation as to the process involved before the court to compel the presence of the accused and it is not discernible on record, the detenu will have the benefit of the delay and the court will have to hold that the live-link between the last prejudicial activity and the purpose of detention has been snapped.

Though in the counter affidavit, it is mentioned that the report under Section 6(1)(a) of KAA(P)A was submitted by the District Collector to the Magistrate Court, there is no explanation as to the process followed by the Magistrate Court to compel the presence of the absconding detenu. The procedure and process followed by the court will have to be explained in such matters, and in the absence, the court will have to interfere with the order of detention. Accordingly, the impugned order is set aside. The detenu is ordered to be released forthwith.

The writ petition(criminal) is disposed of as above.