IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(Crl.).No. 165 of 2010(S) --------------------------- PETITIONER: --------------- RAMESH, S/O.SASI, ROADARIKATHU VEEDU, KULAKKODU, VELLANADU, NEDUMANGAD TALUK, THIRUVANANTHAPURAM. BY ADV. SRI.M.DINESH RESPONDENTS: --------------- 1. STATE OF KERALA, REP. BY ADDL. CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, COLLECTORATE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM RURAL, THIRUVANANTHAPURAM DISTRICT. BY GOVERNMENT PLEADER SRI K.J. MOHAMMED ANZAR FOR R1 TO 3 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(CRL)NO. 165 OF 2010 ============================ DATED THIS THE 14th DAY OF JUNE 2010 JUDGMENT Basant,J. The petitioner has come to this Court with the petition for issue of a writ of habeas corpus to direct the production of his mother-in-law Gracy @ Kanni Omana, daughter of Kunhi who is detained vide Ext.P1 order passed under Section 3 of the Kerala Anti Social Prevention Activities Act(hereinafter referred to as 'the KAAPA'). 2. That order is dated 1/3/2010. The detention commenced with arrest on 7/3/2010. The detenue has been detained categorising her as a known goonda. There are six abkari cases registered against the detenue. All the six cases relate to offences punishable under the Kerala Abkari Act. Investigation is complete and final reports have been filed in all the six cases. Two of those six cases relate to incidents which took place in 2003, both those cases have been registered and charge sheets WPCRL.165/2010 2 after investigation have been filed by the Nedumangad police. Two of the remaining four cases relate to incidents which took place in 2006. Both those cases have been registered and charge sheeted by the Excise Inspector, Nedumangad Excise Range. The incident in the 5th of the six cases occurred in 2007 and that was registered and final report filed by the Excise Inspector, Nedumangad Excise Range. In the 6th of the six cases, crime was registered and final report was filed in 2009 by the police. 3. In all the six cases, the allegations are raised against the detenue of having committed offences punishable under the Abkari Act. Proceedings were initiated against the petitioner on the basis of a report submitted by the Circle Inspector of Police, Nedumangad. The order of detention was passed by the second respondent on the basis of a report submitted by the third respondent, Superintendent of Police. The detenue is continuing in custody from 7/3/2010. The order of detention has been duly approved by the Government under Section 3(3) of the KAAPA and confirmed by the Government by passing the order WPCRL.165/2010 3 under Section 10(4) of the KAAPA. 4. Various contentions have been raised to assail the impugned order of detention and the consequent preventive detention on the strength of Ext.P1 order. We deem it unnecessary to refer to the various contentions that are raised. We are satisfied that this writ petition can be disposed of on the basis of one contention that has been specifically raised and on which detailed arguments have been heard. 5. The learned counsel for the petitioner contends that the detention of the detenu is not justified for the vital reason that the report under Section 3(1) of the KAAPA submitted by the third respondent to the second respondent on the basis of which the impugned order of detention, Ext.P1 was passed, has not been furnished to the detenu as insisted and demanded by Section 7 of the KAAPA. For that sole reason the challenge must succeed and the detenu is entitled to be released, contends the learned counsel for the petitioner. 6. We have been taken through Ext.P1 order which shows very clearly that it is on the basis of report No.54/Camp/09 dated WPCRL.165/2010 4 11/12/2009 received by the second respondent from the third respondent on 15/01/2010 that the decision to invoke the powers of preventive detention under Section 3 of the KAAPA had been taken against the detenu. The learned counsel for the petitioner submits that for obscure reasons, copy of this very vital document has not been furnished to the detenu. The omission to furnish such report must be reckoned as crucial, vital and fatal, contends the learned counsel for the petitioner. The right of the detenu to make an effective representation against the order of detention to the Government/Advisory Board in accordance with the provisions of Section 7 of the KAAPA, which right in turn stems from Article 22(5) of the Constitution, has been violated and tramelled upon. Without any justification, copy of the said report has not been furnished to the detenue. On that ground alone, the detenu is entitled to be released, argues the learned counsel. 7. An order of detention under Section 3 of the KAAPA can be passed by the second respondent only on the basis of information received from a police officer not below the rank of WPCRL.165/2010 5 a Superintendent of Police with regard to the activities of known goonda or known rowdy. It is the information furnished by such police officer which alone can induce the requisite satisfaction in the mind of the detaining authority. That document has not been furnished. Why was that document not furnished? No explanation is forthcoming. It is possible to ascertain the reason after hearing the learned counsel for the petitioner and the learned Government Pleader and after perusing the records. Instead of the said report of the third respondent, a copy of a report by the Circle Inspector of Police is furnished to the detenu. Obviously, the index prepared by the Circle Inspector who forwarded his report to the third respondent through the Dy.S.P.was taken note of by the detaining authority and instead of furnishing copy of the crucial report under Section 3(1) of the KAAPA, copy of the said report of the Circle Inspector was furnished. This undoubtedly is a lapse which has affected the substantive and constitutional right of the detenu to make an effective representation against the order of detention under Section 7 of the KAAPA and Article 22(5) of the Constitution of WPCRL.165/2010 6 India The non-furnishing of that report without sufficient justification is an infirmity which vitiates the preventive detention of the detenue under Ext.P1 order. The challenge is bound to succeed. The plea in a crude form has been raised in this writ petition filed by the petitioner. The same appears as Ground No.4. The same has not been effectively met in the course of arguments. When the contention was raised, we called upon the respondents to produce materials if any to show that the copy of the report of the third respondent to the second respondent under Section 3(1) of the KAAPA has been furnished to the detenu and acknowledgment obtained. The learned Government Pleader after taking instructions and after perusing the file accepts that copy of the said report under Section 3(1) of the KAAPA from the third respondent to the second respondent has not been furnished to the detenu under Section 7 of the KAAPA. No dispute survives on that question of fact. 8. In the result, a) this writ petition is allowed. WPCRL.165/2010 7 b)The continued detention of the detenue, Gracy @ Kanni Omana, the mother-in-law of the petitioner under Ext.P1 is set aside. c) The said detenue Gracy shall forthwith be released by the prison authorities, if her continued detention is not necessary in connection with any other cases. d) The Registry shall forthwith communicate this direction to the prison authorities. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPCRL.165/2010 8