IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(Crl.).No. 160 of 2008(S) --------------------------- PETITIONER: ------------ SHAHUL HAMEED. AGED 57, S/O.ISMAIL THIRUNELVELIKKARAN HOUSE, ALOOR,KALLETTUKARA P.O. IRINJALAKKUDA, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SRI.M.GEORGE THOMAS RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIATE, THIRUVANANTHAPURAM. 2. THE ADDITIONAL CHIEF SECRETARY HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE VIYYUR CENTRAL JAIL, THRISSUR. 4. THE SUPERINTENDENT OF POLICE THRISSUR. 5. S.I. OF POLICE KODAKKARA POLICE STATION, KODAKARA. 6. THE DISTRICT MAGISTRATE/ THE DISTRICTG COLLECTOR,AUTHORISED OFFICER VIDE KERALA ANTI SOCIAL ACTIVITIES (PREVENTION ACT 2007) THRISSUR. BY SHRI K.K. RAVINDRANATH, ADDL.D.G.P. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE DETENTION ORDER DATED 21.3.2008 OF THE DISTRICT MAGISTRATE COURT, THRISSUR. EXT.P2-TRUE COPY OF THE JAIL ADMISSION AUTHORISATION DATED 21.3.2008 BY THE AUTHORISED OFFICER TO THE THIRD RESPONDENT TO KEEP THE DETENUE IN THE CENTRAL JAIL. EXT.P3-TRUE COPY OF THE MEMO FOR EXECUTING THE ORDER OF DETENTION DATED 21.3.2008 EXT.P4-TRUE COPY OF THE PRODUCTION MEMO DATED 22.3.2008 BY THE 5TH RESPONDENT. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No.160 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 9th day of June, 2008. JUDGMENT Ramachandran Nair, J. The petitioner is the father of one Bava @ Shabeek. The said person was arrested on 21.3.2008 as per an order of detention issued by the District Magistrate and District Collector, Thrissur. Alleging that the detention is illegal, the petitioner has approached this court for the issuance of a writ of habeas corpus. 2. It is pointed out by the learned counsel for the petitioner that the order of detention is bad, as the same violates Article 22 of the Constitution of India and the relevant provisions of Kerala Anti-social Activities (Prevention) Act, 2007. Reliance is also placed on the decision of a Division Bench of this court in Anitha Bruse v. State of Kerala and others (ILR 2008 (2) Ker.408). 3. The Division Bench, in Anitha Bruse's case (supra), analysed the requirements of Article 22 of the Constitution of India as well as the provisions of Act. The entire scheme has been explained in paragraph 14 of W.P.Cr.160/2008 2 the judgment in the following terms: “Thus, on a conjoint reading of Sections 3(3), 9, 10(1), 10(4) and Section 12 of the Act, one can understand that the initial order passed by the Government or the Officer authorised under sub- section (2) of Section 3, will remain only for a maximum period of 12 days unless the same is approved by the Government and the further period of detention is fixed by the Government under Section 10(4) on the basis of the opinion given by the Advisory Board under Section 10(1) and (3) within nine weeks from the date of detention of the persons concerned, for which the Government has to place the detention order within three weeks from the date of detention. That means the final order of the Government on the basis of the Advisory Board will have to be issued within nine weeks or 63 days. Thus, the final order, that may be issued by the Government by which it decides to approve the detention and to fix the period, shall not exceed six months from the date of detention in view of Section 12 of the Act. It is relevant to note that the periods fixed in these Sections are mandatory in nature and any lapse in taking steps or complying with the formalities within the time limit fixed by the above provisions will entail the detention as illegal. Thus, on a scrutiny of the scheme envisaged by the Act, it can be seen that ample provisions and safeguards have been incorporated so as to safeguard the fundamental right of the citizens, against illegal arrest and detention, as contemplated by Article 22(4) especially, Article 22(4)(a) of the Constitution of India.” W.P.Cr.160/2008 3 4. Herein, in Ext.P1 order of detention the period of detention has been fixed as six months that too prior to the consideration of the matter by the Board. The same has been passed by the District Magistrate, Thrissur. Going by the dictum laid down in Anitha Bruse's case (supra), the same is against the scheme of the Act itself besides being in violation of Article 22 (4) of the Constitution of India. 5. Hence, going by the dictum laid down in the above case, we hold that Ext.P1 is unsustainable and the same is quashed. There will be a direction to the respondents to release the petitioner's husband Shri Subash forthwith, if he is not wanted in any other case. The writ petition is allowed as above. There will be no order as to costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/