IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 22ND JULY 2010 / 31ST ASHADHA 1932 WP(Crl.).No. 205 of 2010(S) --------------------------- PETITIONER(S): --------------- SUALIMAN 54 YEARS, ABDUL AZIZ, RESIDING AT SHYJA MANZILIL,EROOR MURIYIL PATTADI, EROOR VILLAGE, PATHANAPURAM TALUK,KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM. 4. THE CIRCLE INSPECTOR OF POLICE, ANCHAL, KOLLAM. 5. THE SUB INSPECTOR OF POLICE, EROOR POLICE STATION, KOLLAM. 6. THE SUB INSPECTOR OF POLICE,ANCHAL POLICE STATION,KOLLAM. 7. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.K.J. MOHAMMED ANZAR FOR R THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.C. HARI RANI, JJ. ------------------------------------------------- W.P.(Cri) No.205 of 2010-S ------------------------------------------------- Dated this the 22nd day of July, 2010 JUDGMENT Basant,J. Is the constitutional concomitant fundamental right of the detenu under Art.22(5) of the Constitution for expeditious disposal of a representation to the Government breached? Should this Court concede any advantage to the detenu and direct his release on the ground of infraction of the procedural mandate? These questions are thrown up in this case. 2. The petitioner has come to this Court with this petition to direct production of his son Shaji @ Sharafudeen before Court and to set him at liberty invoking the powers of this Court under Art.226 of the Constitution. 3. The petitioner's son Shaji @ Sharafudeen (hereinafter referred to as `the detenu') is detained as per order of detention W.P.(Cri) No.205 of 2010 -: 2 :- dated 25/3/2010 passed by the 2nd respondent under Sec.3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (for short `the KAAPA'). The detenu was arrested and taken into custody on 29/3/10. He is categorised as a known rowdy under Sec.3 of the KAAPA. The order of detention was duly approved by the Government under Sec.3(3) of the KAAPA on 9/4/10. Later, after receipt of the opinion of the Advisory Board, order confirming detention under Sec.10(4) of the KAAPA was passed on 1/6/10. 4. Before us, the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. Though the learned counsel for the petitioner has chosen to assail the impugned order of detention on various grounds, we deem it unnecessary to refer to all the grounds raised. Serious contentions are raised by the learned counsel for the petitioner only on one specific ground. We are of the opinion that we need consider only that ground in detail. 5. The learned counsel contends that Ext.P19 representation dated 30/4/10 was submitted by the detenu to the Government through the Additional Chief Secretary. That representation dated 30/4/10, the learned counsel for the petitioner fairly accepts, was submitted by registered post W.P.(Cri) No.205 of 2010 -: 3 :- through a representative of the detenu and the same was not submitted through prison authorities. After getting the said representation dated 30/4/10 signed by the detenu, the same was forwarded to the 1st respondent by the said representative/relative of the detenu. The same was served on and received by the Government on 6/5/10. This writ petition was filed on 2/6/10. Till the date of filing of the writ petition, the Government had not communicated the fate of Ext.P19 to the detenu. Later, the detenu was informed by letter dated 27/5/10 that the representation had been rejected. The same was communicated to the detenu on 4/6/10. 6. The crux of the contention of the learned counsel for the petitioner is that there is inordinate, unjustifiable and unexplained delay in disposing of Ext.P19 representation and in communicating the same to the detenu. No explanation whatsoever has been offered to explain the delay from 6/5/10 to 27/5/10 (21 days). This is crucial and vital. This affects the right of the detenu under Art.22(5) of the Constitution. Keeping the detenu on tenterhooks without conveying to him the consideration, if any, of his representation militates against his valuable and cherished rights constitutionally guaranteed under W.P.(Cri) No.205 of 2010 -: 4 :- Art.22(5) of the Constitution, contends the learned counsel. 7. The relevant contentions are seen raised in Paragraph- 11 and Ground-H of the writ petition. We extract Paragraph-11 and Ground-H below for easy and ready reference: “Para-11. The detenue has not been served with the order approving the detention order and the order confirming the detention. The petitioner submitted representation before the 1st respondent dated 30/4/2010 for revoking the detention. A true photocopy of the said representation is produced herewith and marked as Exhibit-P19. The detenue was not given any re was no real and proper the 1st respondent consider and pass any intimation from the 1st respondent as to the fate of Ext.P19. The Ext.P1 detention order as well as the other orders passed pursuant to Ext.P1 by the 1st respondent are liable to be quashed and the detenue is to be released forthwith. ” “Ground-H. It is humbly submitted that the detenue had already submitted a representation on 30/4/2010 the detenue had not been given any reply whether it W.P.(Cri) No.205 of 2010 -: 5 :- was considered or not. To the best of the knowledge and information of the detenue and the petitioner there was no real and proper consideration of Ext.P19 representation by the 1st respondent.” The 1st respondent - Government, by its Additional Chief Secretary now claims to have considered Ext.P19 representation and passed orders on 27/5/10. The 1st respondent has really not filed any counter statement. However, we note that the 2nd respondent has filed a counter affidavit describing the same to be that of the 1st respondent. It is not necessary to delve deeper into the question whether that is the counter affidavit of the 1st respondent or the 2nd respondent. We will reckon the same to be the counter affidavit of both the 1st respondent/Government and the 2nd respondent/the District Collector. There is no reference whatsoever to the contentions raised in Paragraph-11 of the writ petition. Significantly, the contention raised in Ground-H is also not specifically adverted to in such counter affidavit of the 1st/2nd respondent. 8. However, we note that the 3rd respondent - the Superintendent of Police, had adverted to this contention in Paragraphs-2 and 17 of her counter statement. We extract the W.P.(Cri) No.205 of 2010 -: 6 :- relevant portion that appears in Paragraph-2 as also the entire Paragraph-17: “2. ........ The representation dated 30/4/10 by the detenue given to the Government was after a due and proper consideration rejected and the same was communicated to the detenue on 4/6/10. The true photo copy of the said communication served on the detenue, and acknowledged by the detenue is produced herewith and marked as Ext.R3(2).” “17. Ground-H is devoid of merits. The 1st respondent confirmed the Exhibit- P1 vide order GO(Rt) No.1886/2010/Home Dated 1/6/10 and the order was served to the detenue through Superintendent, Central Prison, Thiruvananthapuram. A photo copy of the same acknowledged by the detenue is produced herewith as Ext.R3(3).” 9. Significantly, though they refer to Exts.R3(2) and R3(3), the counter affidavits are not accompanied by any such documents. 10. This is the only response made by the respondents to W.P.(Cri) No.205 of 2010 -: 7 :- the contentions specifically raised in Paragraph-11 and Ground-H of the writ petition. 11. The learned counsel for the petitioner contends, first of all, that Ext.P19 representation was not considered and the result was not conveyed to the detenu admittedly till 4/6/10. For the sake of arguments, the learned counsel accepts that the order must have been served on 4/6/10. The learned counsel advances an argument that communication of the fate of Ext.P19 representation on 4/6/10 is in derogation of the constitutional right guaranteed under Art.22(5) of the Constitution. The learned counsel relies on Art.22(5) of the Constitution. We extract Art.22(5) below: “22. Protection against arrest and detention in certain cases.-- x x x x x x x x x x x x x x x x x x x x x x x x (5) 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 W.P.(Cri) No.205 of 2010 -: 8 :- 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.” (emphasis supplied) 12. Art.22(5) mandates that the detaining authority shall afford the detenu the earliest opportunity for making a representation against the order. Further details are not mentioned. Who should consider the representation and within what time the representation must be considered are not stipulated in Art.22(5) of the Constitution. The constitutional stipulation is only that the detenu must be afforded the earliest opportunity of making a representation against the order of detention. 13. Precedents galore to confirm that this right of the detenu for an earliest opportunity to make a representation against the order of detention carries with it the imperative implication that the representation shall be considered at the earliest opportunity. It is, in fact, unnecessary to refer to the various precedents. The learned counsel has drawn our attention W.P.(Cri) No.205 of 2010 -: 9 :- to the following precedents in support of his contention: (1) Pabitra N. Rana v. Union of India (AIR 1980 SC 798 = [1980] 2 SCC 338). (2) Shalini Soni v. Union of India (AIR 1981 SC 431). (3) Venmathi Selvam v. State of T.N. ([1998] 5 SCC 510). (4) R. Paulsamy v. Union of India (AIR 1999 SC 2004) (5) Rajammal v. State of T.N. ([1999] 1 SCC 417) (6) Harshala Santosh Patil v. State of Maharashtra ([2006] 12 SCC 211). The Constitutional mandate that the detenu must be afforded an earliest opportunity to make a representation against the order of detention will lose all its meaning, content and sheen if such representation were not considered at the earliest. An earliest opportunity to make a representation without a corresponding obligation to consider such representation at the earliest would be an absolute absurdity. That would render the right empty, hollow and meaningless. Therefore, it is easy to come to a conclusion that such a representation must be considered at the earliest. 14. The learned counsel for the petitioner submits that the W.P.(Cri) No.205 of 2010 -: 10 :- constitutional fundamental right for an earliest opportunity to make a representation and the right to get that representation considered at the earliest must be understood in the light of the provisions of the KAAPA. The maximum period of detention permissible under the KAAPA is six months from the date of detention. Within 5 days of detention, the grounds have to be furnished. Within 12 working days, the order must be approved under Sec.3(3) of the KAAPA. Within 9 weeks of detention, the opinion of the Advisory Board must be secured followed by an order under Sec.10(4) of the KAAPA. The obligation under Art.22(5) of the Constitution applied in the context of the KAAPA where the maximum period of detention is only six months must impress upon this Court the need to insist on very early disposal of the representation, contends the learned counsel. The right to make a representation under Sec.22(5) of the Constitution is independent of the right under Art.22(4) to get the detention assessed and evaluated by an Advisory Board. Under the KAAPA, it is independent of the right to get the detention considered by the Advisory Board under Sec.10. Unnecessary continued detention must be avoided. This brings with it the obligation to consider the representation of the detenu W.P.(Cri) No.205 of 2010 -: 11 :- expeditiously. When the total period of permissible detention itself is only six months, a proportionate sense of expedition and urgency must be shown by the detaining authority/Government in considering the representation, contends the learned counsel. 15. The learned counsel Sri.C.Rajendran further argues that under the KAAPA the Government already has all the materials available before it. The counsel relies on the mandate of Sec.3(3) of the KAAPA which commands that as soon as an order is made under Sec.3(3) the detaining authority/the District Magistrate must “forthwith” report the fact to the Government and the Director General of Police together with a copy of the order and all supporting documents. Whether actual detention has been effected or not, the mandate of Sec.3(3) is that as soon as the order is made, the copy of the order along with all relevant documents must forthwith be forwarded to the Government. Counsel argues that this obligation to forward the report to the Government along with copy of order and supporting documents forthwith has relevance to the urgency and expedition in the disposal of the representation also. Under the KAAPA, the Government cannot raise an empty plea that they waited for relevant documents to be made available. At any rate, the W.P.(Cri) No.205 of 2010 -: 12 :- documents must be available immediately after the order is passed and within 12 working days of the detention, approval under Sec.3(3) of the KAAPA must have been granted. 16. The learned counsel strenuously argues and raises the question as to why there was a delay from 6/5/10 - the admitted date of receipt of Ext.P19 under registered post with acknowledgment by the Government and 27/5/10 - the date on which it is claimed to have been disposed of. The counsel contends that significantly no explanation whatsoever has been offered by respondent No.1/2 and respondent No.3 who alone have filed counter affidavits. Significantly there is no mention as to what transpired between 6/5/10 and 27/5/10 to justify the delayed disposal of Ext.P19 representation. 17. The learned counsel Sri.C. Rajendran aruges that it is not even a question as to whether the delay is inordinate or not. The counsel relies on the observations of the two Judge Bench of the Supreme Court in Venmathi Selvam v. State of T.N. (1998(5) SCC 510) which have been approved and endorsed in paragraph-5 of R. Paulsamy (supra). In paragraph-4 the following passage appears: W.P.(Cri) No.205 of 2010 -: 13 :- “ ....... Though the delay is not long, it has remained unexplained. Though the delay by itself is not fatal, the delay which remains unexplained becomes unreasonable. In spite of this well-settled legal position the State Government has failed to explain satisfactorily that it had dealt with the representation of the detenu as promptly as possible. It appears that oblivious of the correct legal position and its obligations in matters of preventive detention it has dealt with the representation of the detenu in a routine manner.” 18. The learned counsel argues that the delay of 21 days may not be crucial or vital in an appropriate case in the light of the explanation offered in that case. But in the total absence of any explanation, the delay must be held to be crucial and vital in this case. The counsel argues that it is not the number of days which is relevant; but the sense of expedition with which the representation of the detenu has been considered by the Government. The learned counsel in this context points out that in the decisions (1) to (6) extracted above, the Supreme Court W.P.(Cri) No.205 of 2010 -: 14 :- had reckoned delay ranging from 5 days to 26 days to be crucial and vital as to invalidate further detention of the detenu. 19. The learned counsel argues that the law frowns upon detention without trial. The same is accepted and tolerated by our system wedded to the rule of law only as a bitter pill necessary to ensure the interests of public order, social security, integrity of the country etc. The minimum safeguards afforded to a detenu must be observed completely and fully and any violation of the mandatory stipulations must be viewed seriously by a court wedded to rule of law and owing allegiance to the constitutional core values of freedom and liberty of the individual. They deserve to be protected zealously and passionately. The counsel argues that, in these circumstances, the long unexplained delay from 6/5/10 to 27/5/10 must be held to be crucial, vital and costly and must, in turn, lead to invalidation of the continued detention of the detenu. The court must frown upon the unexplained delay of 21 days in disposing of the representation when the very detention cannot exceed a period of six months, contends the counsel. 20. The learned Government Pleader Sri.K.J. Mohammed Anzar, on the contrary, argues that though the representation is W.P.(Cri) No.205 of 2010 -: 15 :- dated 30/4/10, the same was not forwarded to the Government (the Additional Chief Secretary) through the prison authorities. That representation dated 30/4/10 was sent by registered post and was received by the Government (the Additional Chief Secretary) only on 6/5/10. The same was considered expeditiously and the order was passed by the Additional Chief Secretary on 27/5/10. That order was communicated to the detenu and the same was served on 4/6/10. The learned Government Pleader further points out that in the order dated 1/6/10 passed by the Government under Sec.10(4) of the KAAPA, there is specific reference to the representation dated 30/4/10 as also the rejection of the said representation by order dated 27/5/10. The fact was referred to in paragraph-4 of the order passed under Sec.10(4) of the KAAPA. Belatedly, the learned Government Pleader has produced Exts.R3(1) to (3) to confirm that the representation dated 30/4/10 was considered by the Government and the order dated 27/5/10 was communicated to the detenu under his acknowledgment on 4/6/10. The learned Government Pleader, in these circumstances, argues that it is not correct to say that the representation dated 30/4/10 was not considered or that no order was passed thereon or that the order W.P.(Cri) No.205 of 2010 -: 16 :- was not communicated to the detenu. 21. This writ petition was filed on 3/6/10. On that date admittedly result of the representation dated 30/4/10, which allegedly was rejected as per the order dated 27/5/10 had not been served on the detenu. It was admittedly served only on 4/6/10, i.e., only after the filing of this writ petition on 3/6/10. 22. The only question that this Court has got to consider hence is whether the delay in considering the representation from 6/5/10 - the date on which it was admittedly received, to 27/5/10 - the date on which Ext.R3(2) order was passed, defeats the constitutional right of the detenu and the obligation of the Government under Art.22(5) of the Constitution to expeditiously consider and dispose of the representation. 23. We agree with the learned counsel for the petitioner that the exercise is not really one of counting the number of days. The matter relates to preventive detention. It is fundamental and axiomatic that true to the mandate of Art.22(5), the detenu must be given an effective earliest opportunity to make a representation against his preventive detention. This right to be afforded an earliest opportunity takes within its wings unmistakably the right to have the representation considered and W.P.(Cri) No.205 of 2010 -: 17 :- disposed of expeditiously. It would be artificial and unrealistic for this Court to stipulate any particular number of days as the period within which the representation has to be disposed of. In fact, even in the KAAPA, there is no period prescribed within which period such representation under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA should be disposed of. All that can be insisted is that such a representation must be considered and disposed of with expedition - at the earliest opportunity, to borrow the language of Art.22(5) of the Constitution. 24. Unmistakably, 21 days is too long a period considering the fact that the total detention could not exceed six months. The arrest was on 29/3/10 and the representation was made on 30/4/10. In an appropriate case, if satisfactory explanation is offered, consumption of 21 days for the disposal of the representation may not be crucial, vital or costly. But the question is whether the representation has been considered with the requisite sense of expedition. It is here that we take note of the total absence of any attempt on the part of the respondents to explain the delay of 21 days in disposing of the application. There is no affidavit/counter statement filed by any of the W.P.(Cri) No.205 of 2010 -: 18 :- respondents or officers acting under them to explain to this Court what happened after the representation was received on 6/5/10. What action was taken on receipt of the representation? Why was there delay of 21 days in disposing of the representation? Significantly, there is not a wispher of an explanation coming forth to explain the delay. We may, in this context, refer to the observations in Venmathi Selvam v. State of T.N. (1998(5) SCC 510) (supra). The delay by itself may not be inordinate or long; but if the delay remains unexplained, it becomes unreasonable. In spite of this well settled position, the respondents have not chosen to offer any explanation as to why there was delay of 21 days. We have already referred to the decisions which indicate that even a delay of 5 days may be reckoned as vital if there is no satisfactory explanation. In the instant case, we must note that the delay was of 21 days, in a matter of preventive detention, total period of which cannot exceed six months. Following the precedents referred above, we have to conclude that in the total absence of even an attempt to explain how the delay of 21 days happened to creep in, the petitioner is entitled to claim the benefit or advantage of such failure to dispose of his representation till 27/5/10. The challenge W.P.(Cri) No.205 of 2010 -: 19 :- on this ground must succeed. 25. It will not be inapposite in this context to refer to the provisions of Sec.3(3) of the KAAPA to which counsel had drawn our specific attention. The Government has to approve the detention. The Government had already approved the detention. Under Sec.3(3), the copy of the order of detention along with supporting documents must have been forwarded forthwith on the passing of the order of detention by the District Magistrate. What we intend to note is that the Government/the Additional Chief Secretary must have been having all the records before him when the representation dated 30/4/10 was received by him on 6/5/10. There is not a semblance of an attempt to even suggest that thereafter anything had to be done before the representation could be disposed of satisfactorily. In particular, we note that there is no case that any remarks of the sponsoring authority had to be called for or that Ext.P19 representation was of such nature that it required further probing, enquiry etc., before it could be disposed of. In fact, we must finally observe that the scales are tilted in favour of the detenu not because of the elapse of 21 days necessarily; but because no explanation is even offered and there is not even an attempt to explain why there was such a delay of W.P.(Cri) No.205 of 2010 -: 20 :- 21 days. 26. The law cherishes and values the citizens' rights for freedom and liberty. It frowns on preventive detention unless it is shown to be justified in substance and procedurally. Compliance with the procedural stipulations has constantly been zealously insisted by constitutional courts when it comes to the question of the freedom and liberty of the individual. Zealous insistence on compliance is made on the rules of procedure not necessarily because the detenues are paragons of virtues. It is a civilizational finesse well recognized in a system wedded to the rule of law that before a person is