IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(Crl.).No. 430 of 2009(S) --------------------------- PETITIONERS: --------------- R.BHUVANACHANDRAN, S/O.P.RAGHAVAN, AGED 54 YEARS, PANDARAVILAKATHU VEEDU, KUNNUMPURAM, VANCHIYOOR, THIRUVANANATHAPURAM. BY ADV. SRI.M.RAJAGOPALAN NAIR SRI.S.JAYAPRAKASH RESPONDENT(S): --------------- 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. DEPUTY COMMISSIONER OF POLICE (L & O) THIRUVANANTHAPURAM CITY, OFFICE OF THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SHRI P.RAVINDRA BABU FOR R1-3 SHRI K.K.RAVEENDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.430 OF 2009 ----------------------------------------------------- DATED THIS THE 19th DAY OF NOVEMBER, 2009 J U D G M E N T Basant, J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to produce the detenu, his son Bejoy @ Kunnumpuram Unni, who is detained under the order of detention Exhibit P1 passed under Section 3 of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). 2. The 3rd respondent submitted a report dated 22.8.2008 sponsoring the detenu for detention. Later, by a further report dated 12.3.2009, the 3rd respondent informed the 2nd respondent that the detenu who was in judicial custody had been released from the prison on 6.11.2008. It is thereafter that the impugned order of detention under Section 3 of the KAAPA was passed on 28.3.2009. The order was executed on 7.6.2009. The detenu continues in custody from that date. 3. Before us, the learned counsel for the petitioner and the learned Government Pleader have advanced their arguments. W.P.(Crl.)No.430/09 -2- The learned counsel for the petitioner assails the impugned order and the consequent detention under that order only on the following two grounds. Though various other grounds have also been raised in the Writ Petition, the learned counsel for the petitioner Shri M.Rajagopalan Nair, in the course of arguments, presses before us only these two contentions. They are: (1) Copies of the report of the sponsoring authority dated 22.8.2009 and the further report dated 12.3.2009 have not been furnished to the detenu. (2) Even going by the alleged endorsement given on the report dated 12.3.2009, copy was furnished only on 12.6.2009 and this offends the mandate of Section 7(2) of the KAAPA. 4. It is the case of the petitioner that the detenu had not been served with both these reports dated 22.8.2008 and 12.3.2009. The learned Government Pleader contends that this contention is actually incorrect. Copies of both these docements have been served on the detenu and his acknowledgment has been obtained. The learned Government Pleader has produced before Court as Exhibit R3(b) and Exhibit R3(c), copies of both W.P.(Crl.)No.430/09 -3- these documents. 5. Inasmuch as signature of the detenu appears in Exhibits R3(b) and R3(c), it is the definite case of the respondents that such signatures have been obtained in acknowledgment of receipt of copies, we do not find any merit in this contention raised by the learned counsel for the petitioner. The detenu has not denied the receipt of the copies. The challenge on that ground hence fails. 6. The learned Government Pleader however, submits that even assuming the second report Exhibit R3(c) has not been served, it cannot lead to the conclusion that there is any fatal infraction of the provisions of Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. The contents of Exhibit R3 (c) are extracted verbatim in the order of detention Exhibit P1. The detenu was thus clearly been apprised of the contents of Exhibit R3(c) and in these circumstances the alleged non- furnishing of Exhibit R3(c) even if true cannot be held to have affected the rights of the detenu to know and understand the reason for detention or to make an effective representation against the order of detention. W.P.(Crl.)No.430/09 -4- 7. It is pointed out that this Court in Sulaiman P.A. v. Additional Chief Secretary to Government and others 2009 (2)KLJ 861 = 2009(4)KLT S.N.30 Case No.32)has taken the view that the second report of the sponsoring authority is crucial and non-furnishing of the same would amount to fatal infraction of the provisions. We are unable to agree. Whether there has been fatal infraction or not would depend very much on the nature of the document, copy of which has not been furnished. In the instant case, the 4th last paragraph of Exhibit P1 order clearly shows that the contents of Exhibit R3(c) were effectively communicated to the detenu. The decision in Sulaiman (supra) cannot therefore be of any help to the petitioner/detenu. 8. Under ground No.2, the learned counsel argues that the acknowledgment of Exhibit R3(c) is only of receipt on 12.6.2009, even if the contentions of the respondents were accepted in toto. According to the learned counsel, the arrest was on 7.6.2009 and therefore furnishing of the copy on 12.6.2009 cannot be held to be 'within five days' as required under Section 7(2) of the KAAPA. The question is about the correct understanding of the expression “within five days of W.P.(Crl.)No.430/09 -5- detention”. We have already considered this question in detail in Sarojini v. Union of India (2009(4) KLT 436). After adverting to the decision of the Hon'ble Supreme Court in Haru Das v. State of West Bengal (AIR 1972 SC 1293), we have already taken the view that when the arrest is on 7.6.2009 and the copy is furnished on the next day(8.6.2009), it must be held to be supplied within one day and consequently, the furnishing of the copy on 12.6.2009 must certainly be held to be within five days of 7.6.2009, the date of detention. In this view of the matter, the latter contention raised is also found to be of no merit. 9. No other contentions are raised. We are satisfied in these circumstances that the Writ Petition only deserves to be dismissed. 10. In the result, this Writ Petition is dismissed. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn