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Case Title: Prabhulla P vs State Of Kerala

Case No: 3/1/2024

Decided on: WP(CRL.) NO. 852 OF 2023

Coram: The Hon’ble Mr. Justice A. Muhamed Mustaque & The Hon’ble Mrs. Justice Shoba Annamma Eapen

 

 

Facts of the Case

The detenu was detained invoking provision of the Kerala Anti Social Activities (Prevention) Act, 2007 in the year 2009. The detenu is under detention since 03.05.2023.

Counsel for the petitioner contended that the recent amendment to Section 13 of the NDPS Act precludes further detention under its terms for a year. This assertion stems from the petitioner’s earlier detention under the unamended Section 12 of the Kerala Anti Social Activities (Prevention) Act. This raises a legal question in the current proceedings.

The legal instrument of a detention order serves to curtail an individual’s freedom of movement and autonomy.

The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. He was released on 01.03.2023.

Legal Provision

Section 12 of Kerala Anti Social Activities (Prevention) Act, 2007:

Maximum period of detention – The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under Section 10, shall not exceed six months from the date of detention.

After the 2014 amendment , Section 12 was read as-

Maximum period of detention – In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend upto six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.

Section 13 of the Narcotic Drugs and Psychotropic Substances Act–

 Special provisions relating to coca plant and coca leaves for use in the preparation of flavouring agent.—Notwithstanding anything contained in section 8, the Central Government may permit, with or without conditions, and on behalf of Government, the cultivation of any coca plant or gathering of any portion thereof or the production, possession, sale, purchase, transport, import inter-state, export inter-State or import into India of coca leaves for use in the preparation of any flavouring agent which shall not contain any alkaloid and to the extent necessary for such use

 Issues

Whether detention order can be passed under Section 12 of the Kerala Anti Social Activities (Prevention) Act, 2007?

Court decision and analysis

The court did not take into account the earlier detention order which was in the year 2009, for imposing maximum one-year detention after 31.12.2014. There is no embargo under the law to detain such persons, who was detained prior to 31.12.2014 for a period of six months.

The Detaining Authority issued the detention order on April 10, 2023, a considerable five months after the District Police Chief, Thiruvananthapuram Rural, submitted the preliminary report on January 13, 2023. Notably, the initial report by the Station House Officer had already been filed on December 22, 2022. No explanation has been provided for this significant delay.

Therefore, considering the aforementioned circumstances, The High Court of Kerela found that the necessary temporal proximity between the last prejudicial activity and the issued detention order was absent. Consequently, the impugned detention order was hereby quashed. The petitioner was released forthwith, barring any other legal reason for continued detention.

This Writ Petition was disposed of.

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Written by- Bhawana Bahety

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