IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(CRL.).NO. 384 OF 2008(S) -------------------------------------- PETITIONER(S): ---------------------- SHAREENA.C., AGED 23 YEARS, W/O.SULFIKKAR, MACHINGATHODI HOUSE, R.S.ROAD, OTTAPPALAM AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): ------------------------- 1. THE DISTRICT MAGISTRATE, PALAKKAD. 2. ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 3. ADVISORY BOARD, REP. BY ITS SECRETARY. 4. SUB INSPECTOR OF POLICE, OTTAPPALAM. 5. SUPERINTENDENT OF POLICE, PALAKKAD. 6. SUPERINTENDENT OF POLICE, CENTRAL JAIL, VIYYUR. BY SHRI K.K. RAVINDRANATH, ADDL. DGP. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C) NO.384 OF 2008 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE DETENTION ORDER. EXHIBIT P2 TRUE COPY OF THE GROUNDS OF DETENTION. EXHIBIT P3 TRUE COPY OF THE MALAYALAM COPY OF EXHIBIT P2. EXHIBIT P4 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.609 OF 2008. EXHIBIT P5 TRUE COPY OF THE MEMO ISSUED BY THE FIRST RESPONDENT DATED 22.8.2008. EXHIBIT P6 TRUE COPY OF THE JAIL ADMISSION AUTHORISATION DATED 22.8.2008. EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SENT BY THE DETENU TO THE THIRD RESPONDENT DATED 10.9.2008. EXHIBIT P8. TRUE COPY OF THE APPLICATION FOR INTERIM RELEASE DATED 10.9.2008. RESPONDENTS' EXHIBITS: ------------------------------------- EXHIBIT R1(A) A TRUE COPY OF THE LIST OF DOCUMENT SERVED ON THE DETENU AT THE TIME OF ARREST, DATED 22.8.2008. A.K. BASHEER & THOMAS P.JOSEPH, JJ. = = = = = = = = = = = = = = = = = = = = = = = = = = W.P(CRL.) No.384 of 2008 = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12th day of January, 2009 J U D G M E N T ---------------------- Basheer, J. Petitioner's husband, Sulfikkar, S/o.Kabeer, Machingathodi Veedu, R.S. Road, Ottappalam, Palakkad District, was ordered to be detained by respondent No.1 under Section 3(2) of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as “the Act”). It is not in dispute that pursuant to the above order, a copy of which is on record as Exhibit P1, Mr.Sulfikkar was arrested on August 22, 2008 and committed to the Central Prison, Viyyur on the next day. The above order of detention is under challenge in this Writ Petition. 2. We have heard learned counsel for the petitioner and learned Additional Director General of Prosecutions, Shri K.K.Ravindranath. 3. In our view this Writ Petition can be disposed of on a short ground. 4. Exhibit P1 order of detention reads thus: “I have received the information from the SHO, Ottappalam Police Station, vide his FIR No.609/2008 dated 19.8.2008 through the Supdt. of Police Palakkad Sulfikkar, age 27/07, W.P(CRL.) No.384 of 2008 -: 2 :- S/o.Kabeer, Machingathodi Veedu, R.S. Road, Near Railway Station, Ottappalam, Palakkad District. I have examined the report carefully. The substance of information received is as follows”. 5. Respondent No.1, District Magistrate and District Collector, Palakkad, has referred to various crimes registered against petitioner's husband in Ext.P1 order of detention. In Ext.P2, grounds of detention also the District Magistrate has given details of the crimes registered against Sulfikkar which are now stated to be pending trial. 6. It is contended by learned counsel for the petitioner that the order of detention is patently illegal, vitiated and is contrary to what has been provided under Section 3 of the Act. 7. Section 3 of the Act empowers the Authorised Officer to detain any Known Goonda or Known Rowdy, if satisfied, on information received from a Police Officer not below the rank of a Superintendent of Police with regard to activities of the said Known Goonda or Known Rowdy. It cannot be disputed that the very purpose of such detention is with a view to prevent such persons from indulging in any anti-social activity within the State of Kerala. A W.P(CRL.) No.384 of 2008 -: 3 :- perusal of the provision contained in Section 3(1) of the Act makes it clear that the authorised officer has to satisfy himself about the need to detain a person on the basis of the information that may be received from a Police Officer not below the rank of a Superintendent of Police. It is pointed out by the learned counsel for the petitioner that in the impugned order, the Authorised Officer has solely relied on the information received from the Station House Officer of Ottappalam Police Station which of course was forwarded through the Superintendent of Police, Palakkad. 8. The above submission cannot be entirely correct, because it is indicated by respondent No.1 in Ext.P1 order that he had examined the report probably referring to a report received from the Superintendent of Police. But, nevertheless, the fact remains that the detaining authority was informed by the Station House Officer that a crime had already been registered against the detenu under the Act. 9. It is true that in the crime referred to above, the Station House Officer had mentioned several crime numbers registered against the detenu. But it may be noticed that the detaining authority had not furnished the copy of the report which was reportedly received from the Superintendent of Police or the Station W.P(CRL.) No.384 of 2008 -: 4 :- House Officer. This is evident from Exhibit R1(a) produced by respondent No.1 along with the counter affidavit. It is seen from Exhibit R1(a) that the detenu was furnished with the following documents: “a. Detention order of the District Collector, Palakkad. b. Grounds of detention (both in English and Malayalam) c. Copies of the FIR in Crime Nos.343/2005, 212/2004, 170/06 532/07 and 595/07. d. Copies of the charge sheet in Crime Nos.212/04, 170/06, 532 of 2007 and 595 of 2007. e. Memo for executing the order of detention”. 10. It is contended by the learned Additional Director General of Prosecutions that the detenu having been served with copies of FIR in various crimes registered against him apart from the charge sheet in four of the above crimes, it cannot be contended by him that his valuable right to challenge the order of detention had been taken away or denied to him. 11. We are unable to agree. As noticed by us already, the detaining authority ought to have arrived at a satisfaction to aim the W.P(CRL.) No.384 of 2008 -: 5 :- detenu on the basis of the information that might have received by it from the Police Officer not below the rank of Superintendent of Police. There is nothing on recored to show that such a report had been received from the Superintendent of Police though there is a vague reference in Ext.P1 to a “report”. But as rightly pointed out by the learned counsel for the petitioner the Authorised Officer has relied on the information from the Station House Officer “through” the Superintendent of Police. In the peculiar facts and circumstances of this case, we are satisfied that the non-furnishing of the copy of the report of the sponsoring authority is fatal. We hasten to add that the above view taken by us is only in the peculiar facts of this case. 12. We may also refer to an unreported decision of a Division Bench of this Court (Ambily v. State in W.P(Crl.) No.314 of 2008) which arose from a similar factual situation. In the said decision the Division Bench held that the detaining authority could not have issued the order of detention on the basis of the so-called credible information from the Station House Officer of a police station. 13. In the above case also the Authorised Officer had passed the detention order on the basis of the FIR registered by the Station House Officer. ln our view, the decision of the Division Bench squarely W.P(CRL.) No.384 of 2008 -: 6 :- applies to the facts of this case. 14. Having regard to the entire facts and circumstances of the case, we are satisfied that the impugned order of detention (Exhibit P1) is liable to be quashed. We do so. However, we make it clear that it will be open to the authority concerned to issue fresh orders in accordance with law, if circumstance warrant such a course of action. Writ Petition is allowed. The Superintendent, Central Jail, Viyyur, respondent No.6 is directed to release from custody Mr.Sulfikkar, S/o.Kabeer, Machingathodi Veedu, R.S. Road, Near Railway Station, Ottappalam, Palakkad, husband of the petitioner, forthwith, if his continued detention is not required in any other case. A.K. BASHEER, JUDGE. THOMAS P.JOSEPH, JUDGE. vsv