IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 3RD MARCH 2011 / 12TH PHALGUNA 1932 WP(C).No. 36280 of 2010(H) ---------------------------------------------- PETITIONER(S): --------------------- LENIN, S/O,BABU, AGED 30 YEARS, CHAMBAKAL HOUSE, PERUMPADAPPU, ERNAKULAM. BY ADV. SRI.K.R.VINOD SMT.M.S.LETHA SRI.T.S.SUMESH SRI.K.V.ARUN KUMAR SRI.M.K.MAHESH RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 2. THE COMMISSIONER OF POLICE, KOCHI CITY, KOCHI 682 031. 3. THE DEPUTY COMMISSIONER OF POLICE KOCHI CITY, KOCHI 682 031. 4. THE CIRCLE INSPECTOR OF POLICE PALLURUTHY POLICE STATION, ERNAKULAM-682 005. 5. THE ADVISORY BOARD, REPRESENTED BY ITS CHAIRMAN, OFFICE OF THE ADVISORY BOARD KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT SEREENIVAS, VIVEKANANDA NAGAR, PADAM ROAD, ELAMAKARA KOCHI -26. R1 TO R4 BY SR.GOVERNMENT PLEADER SRI.P.RAVINDRABABU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.36280 OF 2010-H: PETITIONER'S EXHIBITS: EXT.P1.THE COPY OF THE ORDER OF THIS HONOURABLE COURT IN WP(CRL) No.425/08 DATED 27.01.2009. EXT.P2.A TRUE COPY OF THE ORDER NO.D1 (a) 20928/2007 EC DATED 30.8.2010 ISSUED BY THE 2ND RESPONDENT. EXT.P3.A TRUE COPY OF THE ORDER DATED 27.10.2010 PASSED BY THE ADVISORY BOARD ON THE APPEAL FILED BY THE PETITIONER UNDER SECTION 15 (2) OF THE ACT. RESPONDENT'S EXHIBITS: EXT.R1A. TRUE COPY OF THE INDEX DULY ACKNOWLEDGED BY THE DETENU. K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C).NO. 36280 OF 2010 H ------------------------------------------ Dated this the 3rd March, 2011 JUDGMENT K.M. Joseph, J. Petitioner seeks to challenge Exts.P2 and P3 orders. Ext.P2 is an order passed under Section 15 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). The Authority under Section 15 of the Act has restrained the petitioner from entering the limits of the Kochi City coming under his jurisdiction. Petitioner filed representation before the Advisory Board. The representation was belated. Consequently, by Ext.P3 order, it was dismissed. It is feeling aggrieved by the same, that the petitioner is before us. We heard the learned counsel for the petitioner and also the learned Senior Government Pleader. 2. Learned counsel for the petitioner would contend that the order is vitiated for the reason that the Authority had not taken into W.P.(C).NO.36280/2010 H 2 consideration the fact that the petitioner stood acquitted in one of the cases which constitute the premise on which the order under Section 15 of the Act was based. The petitioner had been proceeded against for the involvement in five cases. 3. As far as Crime No.357 of 2006 which was re-numbered as S.C.No.345 of 2008 is concerned, the petitioner stood acquitted by the Sessions Judge by the Judgment dated 4.5.2009. Ext.P2 order passed under Section 15 of the Act is dated 30.8.2010. There are four other cases, no doubt. The Authority has proceeded on the basis that he was a known rowdy. Petitioner would rely on the Judgment of the Apex Court in Dharamdas Shamlal Agarwal v. The Police Commissioner and Another (1989 KHC 863) and would point out that the omission to take into consideration the acquittal vitiated the subjective satisfaction arrived at by the Authority under Section 15. He would further point out that actually his own brother was a co-accused in four out of the five cases. A similar order has been passed against him for a period of one year. His brother, however, challenged the order by way of W.P.(C).NO.36280/2010 H 3 representation under Section 15 before the Advisory Board. The Advisory Board partly allowed the representation and limited the period of the restriction to six months. Learned counsel for the petitioner prays that having regard to the similarity of the facts, the petitioner may be accorded the same treatment. Learned Senior Government Pleader would point out that the decision of the Apex Court may not as such apply. He, however, does not dispute the fact that the petitioner's brother was indeed a co-accused in four of the five cases in which the petitioner in this case is involved which were taken into consideration by the original Authority and also the Advisory Board. Thus, it is not disputed that virtually on the similar facts, the Advisory Board has, in the case of his brother, limited the period of restriction to six months and only because of the fact that the petitioner's representation before the Advisory Board came to be delayed in all probability, the petitioner was denied similar treatment. We would think that the request of the petitioner that he may be accorded similar treatment as was given to his brother Shri Stalin, whose case, in fact, was also considered W.P.(C).NO.36280/2010 H 4 by us in a Writ Petition filed by him and wherein we confirmed the order passed under Section 15 as modified by the Advisory Board (WP(C).No.2104 of 2011 K). No doubt, it is true that there is one additional case in which the petitioner is involved. But, we feel, having regard to the totality of facts, that we should interfere with Ext.P2 order and reduce the period of restriction from one year to six months. Accordingly, we modify Ext.P2 and direct that the period of restriction visited upon the petitioner under Section 15 of the Act shall stand reduced from one year to six months from 04.09.2010. The Writ Petition is disposed of as above. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, kbk. JUDGE //True Copy// W.P.(C).NO.36280/2010 H 5