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Oral Notification Unnecessary When Detenu is Furnished with Grounds of Detention in a Familiar Language: Supreme Court

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Case Title: Sarfaraz Alam v. Union of India & Ors.

Case No: SLP(Crl) No. 13193 of 2023

Decided on:   4th January, 2024

CORAM: THE HON’BLE MR. JUSTICE M.M. SUNDRESH AND HON’BLE MR.  JUSTICE ARAVIIND KUMAR

Facts of the Case

In the current case, the individual in question was apprehended based on information about a shipment containing gold and foreign currencies. Despite being initially arrested and securing bail, a detention order was later issued under Section 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974.

Following the issuance of the order, the individual was detained. When he refused to acknowledge the grounds of detention, a detailed record (panchnama) was created in the presence of two impartial witnesses. Interestingly, the detenu signed the document in English with the statement “I have refused to receive any document.”

The court inferred from this that the detenu’s claim of ignorance of English appeared to be an afterthought. It also noted that an attempt to provide him with a translated version of the grounds was made on the very next day of his detention. Due to these observations, the Bench denied the requested relief, emphasizing that the individual had approached the court with unclean hands and had withheld essential facts.

Issue

The central issue in this case revolves around whether the detenu/appellant was effectively informed by the authorities, in a language he comprehended, regarding the grounds of detention and his right to make a representation, leading to the challenge of the detention order.

Legal Provision

Article 22(5) of the Constitution of India states that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

Court’s analysis and decision

In the course of rejecting a challenge to detention on the basis of the detenu/appellant not being informed of his rights by the authorities, the Supreme Court declared that if a detenu receives the grounds of detention in a language he understands, containing a clear statement about his right to make a representation, there is no necessity for additional verbal communication.

Discussing Article 22(5) of the Constitution of India, a Division Bench comprising Justices MM Sundresh and Aravind Kumar emphasized that it is imperative to inform a detenu of the grounds of detention (along with relevant documents) promptly and in a language he comprehends. Additionally, the detenu must be made aware of his right to challenge the detention order by making a representation.

The Bench concluded that the grounds of detention, forming the basis for the satisfaction of the detaining authority, were effectively communicated to the detenu. The document contained “adequate averments” indicating the right to make a representation to the specified authorities. As the detenu had read the grounds and relevant documents, the Bench asserted that he was well-informed about his right to submit a representation.

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Written by- Afshan Ahmad

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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

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Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. 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 amendment in 2014, the Section 12 of the KAAPA reads as:

“12. 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.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

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Written by- Afshan Ahmad

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S. 12 of Kerala Anti-Social Activities (Prevention) Act, 2007 operates prospectively in regard to period of detention: Kerala High Court

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Case Title: Prabhulla P. v. State of Kerala & ors.

Case No: WP(CRL.) No. 852 of 2023

Decided on:  3rd January, 2024

CORAM: THE HON’BLE MR. JUSTICE A.MUHAMED MUSTAQUE & HON’BLE MRS. JUSTICE SHOBA ANNAMMA EAPEN 

Facts of the Case

Initially, the detenu was detained invoking provision of the KAAPA in the year 2009. The last prejudicial activity was committed by the detenu on 15.11.2022 and he was arrested on the same day. The preliminary report was filed by the Station House Officer on 22.12.2022. The order was issued only on 10.04.2023. The detenu is under detention since 03.05.2023. The final report in Crime No.1483/2022 was filed on 20.06.2023.

The Counsel for the petitioner submitted that, based on amendment under Section 13 of the Narcotic Drugs and Psychotropic Substances Act, the detenu cannot be detained by operation of amended provision for a period of one year, in view of the fact that the earlier detention was suffered by him, was based on un-amended provision under Section 12 of the KAAPA.

Issues

Whether detention order can be passed under Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the KAAPA”) detaining a person beyond six months in a case where such a detenu suffered detention prior to the amendment to Section 12?

Legal Provisions

Before the amendment, the Section 12 of the KAAPA reads as:

 “12. 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 amendment in 2014, the Section 12 of the KAAPA reads as:

“12. 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.”

Court’s analysis and decision

Section 12 of the KAAPA would operate only prospectively in regard to the period of detention. Earlier detention order was in the year 2009, that cannot be taken into account for imposing maximum one year detention after 31.12.2014.

There is no explanation for the considerable delay of five months in passing the detention order. The impuged order is set aside. The petitioner is ordered to be released forthwith, if it is not otherwise required under law.

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Afshan Ahmad

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Lack of Temporal proximity to prejudicial activity is a ground for quashing of detention order: Kerala High court.

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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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Long Detention With A Pending Trail Would Amount To Conviction Without Trial: High Court Of Kerala

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Title: Mukesh v State Of Kerala

Citation: BAIL APPL. NO. 8308 OF 2023

Coram: HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

Decided on: 25TH DAY OF OCTOBER 2023

Introduction:

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973. Petitioner is alleged to have attacked the victim for rejecting his marriage proposal. Due to the attack, the victim lost four fingers. Petitioner was arrested on 28.06.2022 and has been in jail since then.

Facts:

It is contended that, petitioner has been in custody since 28.06.2022, and having regard to the long period of detention already undergone, he ought to be released on bail. The learned Senior Public Prosecutor on the other hand opposed the application and contended that, this Court had, on an earlier occasion rejected the bail application noticing the serious threat to the victim and also taking note of the nature of injuries inflicted.

According to the prosecution, the accused, due to an enmity for rejecting his marriage proposal by the victim, attacked her on 15.04.2022 with a chopper, explosives and petrol and even destroyed the window glasses and set fire to the kitchen by pouring petrol.

On hearing the hue and cry, when parents and brother of the victim came out of the house, he attacked them ruthlessly, causing injuries to the victim as well as her parents and brother. In the attack, the victim lost four fingers of her right hand and the accused thereby committed the offences punishable under Sections 447, 341, 326, 307, 436 and 427 of the Indian Penal Code with Section 27 of the Arms Act, 1959 and Section 9B(1)(b) of the of the Explosives Act, 1884.

Court’s analysis and Judgement

Though the allegations are serious in nature and the petitioner has a history of having absconded earlier, Justice pointed, considering the long period of detention already undergone, further detention would amount to conviction without trial. Since, it is submitted that, the case is already pending before the Sessions Court and is posted for hearing of the charge on 15.11.2023, I am of the view that, further detention ought not to be permitted. However, strict conditions should be imposed. accordingly, this application is allowed

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Written by- Sushant Kumar Sharma

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