IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 3RD JUNE 2008 / 13TH JYAISHTA 1930 WP(Crl.).No. 131 of 2008(S) --------------------------- PETITIONER: ------------ SHOBA,W/O.BABU,AGED 55,CHAMPAKKAL HOUSE, S.N ROAD,PERUMPADAPPU,KOCHI-6. BY ADV. SRI.K.R.VINOD RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY,MINISTRY OF HOME,THIRUVANANTHAPURAM. 2. THE ADDL.CHIEF SECRETARY,HOME & VIGILANCE DEPT.GOVT.SECRETARIAT,THIRUVANANTHAPURAM 3. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE,ERNAKULAM. 4. THE CITY POLICE COMMISSIONER,KOCHI CITY,ERNAKULAM. 5. THE CIRCLE INSPECTOR OF POLICE, KOCHI CUSBA POLICE STATION,ERNAKULAM. 6. THE SUB INSPECTOR OF POLICE,KOCHI CUSBA POLICE STATION,ERNAKULAM. 7. THE SUPERINTENDENT, VIYYUR CENTRAL JAIL,THRISSUR. BY GOVERNMENT PLEADER FOR R1 - R7 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 30/05/2008, THE COURT ON 3/6/2008 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE PHOTO COPY OF THE ORDER OF DETENTION ALONG WITH THE GROUNDS FOR DETENTION OF THE SON OF THE PETITIONER DATED 11.6.2007 ISSUED BY THE THIRD RESPONDENT. EXT.P2-TRUE PHOTO COPY OF THE MEMO DATED 11.6.2007 ISSUED BY THIRD RESPONDENT DIRECTING THE 4TH RESPONDENT TO EXECUTE ORDER OF DETENTION. EXT.P3-TRUE PHOTO COPY OF THE JAIL ADMISSION AUTHORISATION DATED 11.6.2007 ISSUED BY THE THIRD RESPONDENT IN FAVOUR OF THE 7TH RESPONDENT. EXT.P4-TRUE COPY OF THE ORDER OF APPROVAL DATED 7.2.2008 ISSUED BY THE 2ND RESPONDENT. RESPONDENTS' EXTS: EXT.R1(A)-TRUE COPY OF GO DATED 18.4.2008. // TRUE COPY// P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.)No.131 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of June, 2008. JUDGMENT Ramachandran Nair, J. This writ petition is filed by the petitioner challenging the detention of her son under the provisions of the Kerala Anti-social Activities (Prevention) Act, 2007 (Act 34 of 2007) (for short 'the Act'). Ext.P1 is the order of detention issued by the third respondent District Collector and District Magistrate which is dated 11.6.2007. It was executed on 1.2.2008. By Ext.P4, the Government passed an order of approval of his detention for a period of six months under Section 3(3) of the Act. These orders are under challenge in this writ petition on various grounds. 2. Heard learned counsel for the petitioner Shri K.R. Vinod and Shri K.K. Ravindranath, learned Sr. Govt. Pleader and Liaison Officer, for the respondents. 3. The main contentions urged by learned counsel for the petitioner are that the orders of detention are passed in violation of Article 22(4)(a) of the Constitution of India. By referring to grounds A and B of the writ petition, it is submitted that there is total violation of the provisions of WPCr. 131/2008 -2- Sections 3(3), 9, 10(1), 10(4) and 12 of the Act, as the Government did not seek the opinion of the Advisory Board within the time stipulated by the provisions of the Act. It is pointed out that the final order of the Government on the basis of the opinion of the Advisory Board, had to be issued within nine weeks or exactly speaking, 63 days from the date of detention and Ext.P4 order of approval has been issued to put the detenu in detention for six months even without getting the opinion of the Advisory Board. It is therefore pointed out that there is gross violation of Article 22 of the Constitution of India. Learned counsel also relied upon the Bench decision of this court in Anitha Bruse v. State of Kerala and others (ILR 2008 (2) Ker.408) in support of his contentions. 4. Respondents 1 to 3 have filed their counter affidavits. Going by the averments in the counter affidavits, the following facts are clear. The order of detention was executed on 1.2.2008 which was informed to the Government by letter dated 2.2.2008 of the District Magistrate, Ernakulam which was received by the Government on 5.2.2008. The Government approved the order of detention under Section 3(3) of the Act as per Ext.P4 dated 7.2.2008. The matter was referred to the Advisory Board by the Government under Section 9 of the Act as per letter No.9696/SSA5/2008/Home dated 15.2.2008 and it was handed over to the WPCr. 131/2008 -3- Advisory Board on 18.2.2008. The Advisory Board furnished their opinion as per their proceedings R.C.No.10/2008 dated 28.3.2008. The Government, after receipt of the said opinion of the Advisory Board, again considered the matter and confirmed the detention of the detenu under Section 10(4) of the Act, as per Ext.R1(a) 18.4.2008. 6. The relevant principles as regards the mandatory nature of the provisions have been laid down in the decision reported in Anitha Bruse's case (supra). After examining in detail Article 22 of the Constitution of India and the relevant provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, it was held in paragraph 14 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 WPCr. 131/2008 -4- 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.” Therefore, the final order of the Government on the basis of the opinion of the Advisory Board will have to be issued within nine weeks or 63 days. Going by Section 12 of the Act, the maximum period for which any person may be detained, pursuant to any order of detention which has been confirmed under Section 10, shall not exceed six months from the date of detention. Judged in the light of the above principles, the arguments raised herein have to be examined on the factual details projected in this case. 7. The facts already stated shows that the order of detention was executed on 1.2.2008. Ext.P4 order was passed by the Government on 7.2.2008 wherein the order of detention was approved for a period of six WPCr. 131/2008 -5- months. Going by the averments in the counter affidavit filed by respondents 1 and 2, the matter was referred to the Advisory Board by the Government as per letter dated 15.2.2008 and after getting their opinion, Ext.R1(a) order was passed confirming the order of detention, on 18.4.2008. Even though the opinion of the Advisory Board was sought within the stipulated time, the order of confirmation has been passed beyond the period of nine weeks (63 days). Therefore, on that ground itself, Ext.R1(a) order confirming the order of detention cannot be sustained. Apart from that, we find that Ext.P4 order granting approval for detention of the detenu for a period of six months is also not in tune with Article 22 of the Constitution and the prescriptions of the Act. Under Article 22(4) of the Constitution of India, “No law providing for prevention detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention. Herein, going by Ext.P4, the period of detention was approved for six months before referring the matter to the opinion of the Advisory Board, which clearly violates the provisions of Article 22(4)(a) of the Constitution and Section 10(4) of the Act. A similar WPCr. 131/2008 -6- question was considered in Anitha Bruse's case (supra) and relying upon the principles laid down by the Apex Court in Makhan Singh Tarsikka v. State of Punjab (AIR (39) 1952 SC 27 (C.N.7), it was held that the fixing of a period of detention in the original order as six months is totally illegal. In the order of detention Ext.P1, the period of detention is only for 10 days. In Ext.P4 the approval granted is for a period of six months and the order was passed before referring the matter to the opinion of the Advisory Board. Therefore, following the dictum laid down by the Apex Court in Makhan Singh's case (supra) and by this court in Anitha Bruse's case (supra), we are of the view that by passing Ext.P4, the Government has exceeded its jurisdiction and the same is in total violation of Article 22(4) of the Constitution of India. Therefore, Ext.P4 is quashed. 8. Ext.R1(a) is dated 18.4.2008. Going by the scheme of the Act, as explained by this court in Anitha Bruse's case, the final order of the Government on the basis of the opinion of the Advisory Board, will have to be issued within nine weeks or 63 days. Therefore, 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. Their Lordships held therein that “the final order, that may be issued by the WPCr. 131/2008 -7- 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 was held that 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. Therefore, going by the above dictum , Ext.R1(a) order will not save the situation. It is passed beyond the period of nine weeks. Therefore, Ext.R1(a) is also declared as illegal. 9. Hence, we quash Ext.P4 which is confirmed in Ext.R1(a). The respondents are directed to release the petitioner's son Mr. Stalin, the detenu forthwith, if he is not required 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/