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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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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

Click here to read the judgement

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Madras High Court Directs to release the detenu Since there was Delay in passing of orders.

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TITLE:  Rajamani Vs. Principal Secretary Tamil Nadu State, and others 

Decided On: July 11, 2023

H.C.P(MD)No.1753 of 2022

CORAM:  Hon’ble Justice Mr. M.S. Ramesh and M. Nirmal Kumar.

Introduction:

Petition under Article 226 of the Constitution of India praying to issue a writ of habeas corpus calling for the entire records connected with the detention order of the second respondent in No.72/BCDFGISSSV/2022 dated 13.09.2022 and quash the same and direct the respondents to produce the detenu or body of the detenu namely Kannan @ Kuruvi Kannan, S/o.Selvakumar, aged about 25 years, detained as ‘Goonda’ in Central Prison, Madurai and now confined at District Jail at Dindigul before this Court and set him at liberty forthwith.

Facts:

The petitioner is the sister of the detenu viz., Kannan @ Kuruvi Kannan, S/o.Selvakumar, aged about 25 years. The detenu has been detained by the second respondent by order in No.72/BCDFGISSSV/2022 dated 13.09.2022, holding him to be a ‘Goonda’, as contemplated under Section 2(f) of Tamil Nadu Act 14 of 1982. The said order is under challenge in this Habeas Corpus Petition.

Legal Analysis and Decision:

As seen from the grounds of detention, it is clear that though the detenu was arrested on 19.07.2022, the order of detention came to be passed only on 13.09.2022 and hence, there is an abnormal delay in passing theorder of Detention, which caused prejudice to the interest of the detenu. We have gone through the entire materials placed on record. There is no satisfactory explanation offered by the Detaining Authority for the delay in passing the order of detention. Hence the impugned order of detention is liable to be set aside. In the result, the Habeas Corpus Petition is allowed and the order of detention in No.72/BCDFGISSSV/2022 dated 13.09.2022, passed by the second respondent is set aside. The detenu, viz., Kannan @ Kuruvi Kannan, S/o.Selvakumar, aged about 25 years, is directed to be released forthwith unless his detention is required in connection with any other case.

Conclusion:

The detention order is mainly attacked on the ground that there is a delay in passing the order of detention. the detention order was passed only on 13.09.2022 i.e., after a considerable delay of nearly two months. Therefore, the detention order was set aside, and the detenu, is directed to be released forthwith unless his detention is required in connection with any other case.

“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.”

 JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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