IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 4TH MARCH 2010 / 13TH PHALGUNA 1931 WP(Crl.).No. 504 of 2009(S) -------------------------------------- PETITIONER: ------------------- PATHU, W/O.ABOOBACKER @ POCKER, THEYYAMBADI HOUSE, VELLUR AMSOM, KODENCHERRY, THOONERI.P.O, VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. MR.V.A.SATHEESH. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE ADDL.CHIEF SECRETARY (SECRETARY,HOME AFFAIRS), SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOZHIKODE. 3. THE SUPERINTENDENT OF POLICE, KOZHIKODE (RURAL), KOZHIKODE, OFFICE OF THE SUPERINTENDENT OF POLICE, KOZHIKODE. 4. THE SUB INSPECTOR OF POLICE, NADAPURAM, KOZHIKODE DISTRICT. 5. THE SUPERINTENDENT, CENTRAL PRISON, KANNUR. R1 TO R5 BY ADDL.DIRECTOR GENERAL OF PROSECUTION, GOVERNMENT PLEADER MR. R. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 03/03/2010, THE COURT ON 04/03/2010 DELIVERED THE FOLLOWING: W.P.(CRL.). NO.504/2009-S: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE CERTIFICATE DTD. 30/10/2009 ISSUED BY THE PRESIDENT OF I.U.M.L. TUNERI PANCHAYATH. EXT.P.2: COPY OF THE ORDER NO. 5453/SBR/G/2009 SIGNED ON 04/07/2009 OF THE R.3. EXT.P.3; COPY OF THE F.I.R IN CRIME NO. 228/2009 OF NADAPURAM POLICE STATION. EXT.P.4: COPY OF THE REPORT DTD. 04/07/2009 OF THE R.3. EXT.P.5: COPY OF THE DETENTION ORDER DTD. 31/08/2009 OF THE R.2. EXT.P.6: COPY OF THE ORDER OF APPROVAL DTD. 19/09/2009 OF THE R.1. EXT.P.7: COPY OF THE ORDER DTD. 06/10/2009 OF THE R.1. EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER'S SON BEFORE THE CHAIRMAN OF THE ADVISORY BOARD. EXT.P.9: COPY OF THE FINAL ORDER U/S 10(4) OF KAAPA DTD. 21/11/09. EXT.P.10: COPY OF THE FINAL REPORT IN CRIME NO. 419/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. Thottathil B.Radhakrishnan & P.S.Gopinathan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = W.P(Crl.)No.504 of 2009-S = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 4th day of March, 2010. Judgment Thottathil B.Radhakrishnan, J. 1.The petitioner, stated to be the mother of a detenue, challenges the order of detention passed under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007, hereinafter referred to as the “Act”. The said order Ext.P5 was issued on the basis of information furnished by the Superintendent of Police as per Ext.P4. 2.Before proceeding to consider the contents of the impugned decision, it is worthwhile to note that the Sub Inspector of Police, Nadapuram Police Station placed a report dated 21.6.2009 before the Superintendent of Police. That, in turn, generated Ext.P4 dated 4.7.2009. The said report WPCR504/09 -: 2 :- is the only material relied on by the District Magistrate to issue the impugned Ext.P5. However, Ext.P5 is issued only on 31.8.2009, nearly two months after the issuance of Ext.P4. With this, we look into the contents of Ext.P5 to find that the last among the incidents relied on against the detenue is one that allegedly occurred on 2.10.2008 in relation to which an FIR was registered on 3.10.2008 and a final report was filed on 28.11.2008. There is absolutely no material on record attributing any act or other allegations on the basis of which it could have been at least inferred that there was likelihood of the detenue indulging in or is about to indulge or abet any anti-social activity or that there is material or information on the basis of which, the competent authority could be satisfied that the detenue has to be prevented from committing any anti-social activity. We are, therefore, of the firm view that even on these materials there is nothing to hold that there is a continued link between the antecedents and the WPCR504/09 -: 3 :- apprehension of the officials on the basis of which, the impugned detention order is issued. 3.Now, proceeding to the contents of Exts.P4 and P5, we find that as regards the first three cases, the detenue had specific and elaborate submissions in his representation that those cases could not be counted for the purpose of issuing the impugned detention order. This specific contention raised by the detenue, if sustained, would give him the protection of any among the first two clauses under the proviso to section 2(p) of the Act. He has also a case that at least after the order of detention, the said cases have been compounded. Even if we were to assume that on the relevant point of time those cases were subsisting, we also have to take it that detenue's stand in his representation regarding the nature of those cases had to be answered. In so far as the other two cases are concerned, the detenue had specifically stated in his representation that they are cases having a WPCR504/09 -: 4 :- political colour and they are political cases which would fall within clause 5 of the proviso to Section 2(p) and therefore, not liable to be counted to treat him as a “known rowdy”. He also has shown Ext.P1, an undisputed document which is issued by the Tuneri Panchayath Committee of Indian Union Muslim League stating that the detenue is an activist of that political party and he is the ward committee General Secretary of that political party. But, with all these materials, it is unfortunate that the Government chose to dispose of his representation without stating any reason and without meeting the grounds specifically raised by the detenue in his representation. The quality of consideration and disposal of the representation resulting in Ext.P6 is cryptic and arbitrary. 4.For the aforesaid reasons, we are satisfied that there was no ground on which the detenue could have been detained under the provisions of the Act and the impugned order does not, therefore, WPCR504/09 -: 5 :- stand. In the result, this writ petition is allowed quashing Exts.P5 and P9 orders and setting aside the detention order. If the continued detention of the detenue is not necessary in connection with any other case, he shall forthwith be released by the prison authorities. The Registry shall forthwith communicate this order to the prison authorities concerned. Sd/- Thottathil B.Radhakrishnan, Judge. Sd/- P.S.Gopinathan, Judge. Sha/0403