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 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(Crl.).No. 180 of 2008(S) --------------------------- PETITIONER: ------------ RANJINI.C.R., D/O. RAVI, CHETTIKATTIL HOUSE,ALUVA TALUK, THOTTUVA VILLAGE. BY ADV. SRI.M.H.HANIS SRI.MANU TOM RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO DEPARTMENT OF HOME, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, ERNAKULAM. 3. THE SUPERINTENDENT OF POLICE, ERNAKULAM (RURAL). 4. THE CIRCLE INSPECTOR OF POLICE, CHENGAMANADU. 5. THE SUB INSPECTOR OF POLICE, KALADY. BY SHRI K.K. RAVINDRANATH, SPL.G.P. & ADDL.D.G.P. FOR R1-5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12/06/2008, THE COURT ON 17/6/2008 DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF ORDER DATED 15.2.08 ISSUED BY R1 EXT.P2-TRUE COPY OF DO. DT.18.4.08 ISSUED BY R1 EXT.P3-TRUE COPY OF REPORT DATED 8.2.2008 SUBMITTED BY R3 EXT.P4-TRUE COPY OF LETTER DATED 8.2.2008 SENT BY R4 TO R3 EXT.P5-TRUE COPY OF LETTER DT.8.2.08 BY R3 TO R5 RESPONDENT'S EXTS: EXT.R1(A)-TRUE COPY OF DETENTION ORDER PASSED BY R2 EXT.R1(B)-TRUE COPY OF GROUNDS FOR DETENTION EXT.R1(C)-TRUE COPY OF INDEX SHOWING THE DETAILS OF RECORDS SERVED ON THE DETENU. // TRUE COPY // P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No. 180 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2008. JUDGMENT Ramachandran Nair, J. The petitioner is challenging the detention of her brother Shri Ratheesh, under the Kerala Anti-social Activities (Prevention) Act, 2007 (for short 'the Act'). The main prayer in the writ petition is to issue a writ of habeas corpus. It is contended that the order of detention is oppose to the provisions of Article 22(4) of the Constitution of India and the scheme of the Act. 2. Heard learned Senior counsel Shri K. Ramakumar appearing for the petitioner and Shri K.K. Raveendranath, learned Special Govt. Pleader and Addl. Director General of Prosecutions, appearing for the respondents. 3. The first respondent has filed a detailed counter affidavit justifying the order of detention passed. Ext.R1(a) is the order of detention passed by the District Collector and District Magistrate directing to detain the detenue with immediate effect for a period of six months. The same is dated 8.2.2008. As per Ext.P1, Ext.R1(a) stands approved by the Government under Section 3(3) of the Act for a period of six months. Ext.P2 is an order WPCR 180/2008 -2- dated 18.4.2008 whereby the order of detention has been confirmed under Section 10(4) of the above Act by which he had been ordered to be detained for a period of six months from 9.2.2008. 4. The main contentions urged are that Ext.P1 is in total violation of Article 22 of the Constitution of India and Sections 3(3), 10(4) and 12 of the Act. It is pointed out that by fixing a period of six months in Exts.P1 and P2, the mandate of Article 22(4) has been grossly violated. It is also pointed out that the Government is competent to fix the period of detention only after obtaining the opinion of the Advisory Board. 5. The legal position as regards the above contentions has been examined in detail by a Division Bench of this court in the decision reported in Anitha Bruse v. State of Kerala and others (ILR 2008 (2) Ker.408). After analysing the import of Article 22 of the Constitution and the various provisions of the Act, 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 WPCR 180/2008 -3- 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 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.” 5. As we have already pointed out, Ext.R1(a) order is totally in violation of Article 22(4) of the Constitution, as the detaining authority has fixed six months as the period of detention. The same is violative of the express provisions of the Act also. Since the order of detention is invalid from its insufficiency, we declare that the said order and consequential orders Exts.P1 and P2 are also unsustainable. Therefore, the said orders are quashed. There will be a direction to release the petitioner's brother Shri WPCR 180/2008 -4- Ratheesh forthwith, if not wanted in connection with any other case. The writ petition is allowed as above. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/