IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 WP(Crl.).No. 415 of 2008(S) --------------------------- PETITIONER: --------------- SABITHA, W/O.ASHRAF, THARAYIL PARAMBIL HOUSE, NAMBYAPURAM P.O., PALLURUTHY. BY ADV. SRI.MATHAI VARKEY MUTHIRENTHY RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, HOME AFFAIRS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, ERNAKULAM. 3. THE SUPERINTENDENT OF CENTRAL PRISON, VIYOOR, TRISSUR. 4. THE COMMISSIONER OF POLICE, KOCHI CITY. 5. DEPUTY COMMISSIONER OF POLICE, KOCHI CITY. GOVERNMENT PLEADER FOR R1-5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE ORDER OF DETENTION. EXT.P2 COPY OF THE ORDER OF APPROVAL ISSUED BY THE HOME DEPT. THIRUVANANTHAPURAM NO.67292/SSA5/2008/HOME DTD 16.9.2008. EXT.P3 COPY OF THE GROUNDS OF DETENTION EXT.P4 COPY OF THE MEMORANDUM FILED BY THE PETITIONER BEFORE THE ADVISORY BOARD. EXT.P5 COPY OF THE ORDER DTD 5.11.2008. RESPONDENTS' EXHIBITS: EXT.R5(A) COPY OF THE GROUNDS FOR DETENTION SERVED ON THE DETENU ON WHICH HE HAS ACKNOWLEDGED ON 3.9.2008. /TRUE COPY/ cl A.K.BASHEER & THOMAS P. JOSEPH, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl)No.415 OF 2008-S - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2009 JUDGMENT Basheer, J: Petitioner is the mother of the detenu, Sri. Ashkar, S/o. Ashraf, who has been detained under Section 3(2) of the Kerala Anti Social Activities (Prevention) Act, 2007. The authorised officer, in Ext.P1 order has stated that the detenu falls within the definition of “known goonda” as defined under the Act and that if he remains at large, he would indulge in antisocial activities in Kochi city area. This would, “directly or indirectly, cause harm, danger or alarm or a feeling of insecurity or cause threat to public life among the general public or residents of Kochi city area”. 2. It is on record that the detenu was arrested at about 7.30 p.m on September 02, 2008 and committed to Central Prison, Viyyur. Ext.P3 is stated to be the true copy of the grounds of detention in which reference has been made to 21 crimes registered against the detenu. It is seen that a large number of those crimes are for offences punishable under the Narcotic Drugs and Psychotropic Substances Act. There are a few others in which the detenu is alleged to have committed offences punishable under the Indian Penal Code. We do not deem it necessary to deal with that aspect of the matter at this stage, in view of the order that we propose to pass. 2 W.P.(Crl.)No.415/08 3. The primary contention raised by the petitioner is that the detenu was not furnished copies of all the relevant documents along with the grounds of detention as contemplated under Section 7(2) of the Act. 4. Learned counsel invites our attention to the endorsement made by the Circle Inspect of Police, Palluruthy while arresting the detenu at 7.30 p.m on September 02, 2008 in execution of the order of detention. Section 7(1) of the Act postulates that when a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. The endorsement made by the Circle Inspector indicates that the order of detention was read over to the detenu in Malayalam and he was served with a copy thereof along with the grounds of detention. The endorsement does not state that the detenu had been given copies of all the relevant documents. But the last page of Ext.P3 meant that the detenu is seem to have made an endorsement that he had received copy of grounds of detention. This endorsement is seen to have been made on September 03, 2008. Just below this endorsement, the detenu is seen to have made a further endorsement to the effect that he had received copies of the related documents that were forwarded by the Deputy Police Commissioner to the authorised officer. The said endorsement is also seen to have been made on September 03, 2008. It is contended by the learned counsel that the above endorsement allegedly made by the detenue while he was in custody goes contradictory to the certification made by the Circle Inspector of Police, on 3 W.P.(Crl.)No.415/08 Ext.P1 order of detention. It is the contention of the learned counsel that the endorsement on Ext.P3 obtained from the detenue might have been procured at a later stage. He points out that the Circle Inspector had not put any date underneath the endorsement in Ext.P1. According to the respondents, the detenu was arrested on September 02, 2008. If the detenu had been taken into custody on September 02, 2008, the order of detention ought to have been served and it was in fact served on the detenu on the same date itself. But, going by the provisions contained in Subsection 2 of Section 7, the grounds of detention and copies of the relevant documents need be served on the detenu as soon as possible at any rate within 5 days of detention. But, in Ext.P1 endorsement, the Circle Inspector had stated that the detenu had been served with a copy of the grounds of detention. Such an endorsement was obtained from the detenu only on the next day. This according to the learned counsel indicates that there was some manipulation with regard to the subsequent endorsement. Though we are unable to agree with the learned counsel on this aspect fully, we are satisfied that in the peculiar facts and circumstances of the case there is some force in the contention raised by the petitioner. It is pertinent to note that the respondents have a case that copies of all the relevant documents had been furnished to the detenu. Though in the affidavit filed on behalf of respondent No.5 it is averred that copies of all relevant documents had been given to the detenu, we are not able to accept the above assertion in toto. In fact the officer 4 W.P.(Crl.)No.415/08 concerned ought to have ensured that an endorsement on the list of documents was obtained from the detenu as and when copies of the document had been furnished to him. 4. In the absence of any material to show that the detenu had been served with copies of the relevant documents, we are inclined to accept the contention raised by the petitioner that the order of detention is in violation of Section 7(2) of the Act. In that view of the matter on that short ground, the order of detention is quashed. However, we hasten to add that it will be open to the authority concerned to issue fresh order of detention under the Act, if so warranted. 5. For the forgoing reasons, Ext. P1 order of detention is quashed. The detenu, Sri. Ashkar, S/o. Ashraf, Tharayil Parambil House, Nambyapuram, Palluruthy, Ernakulam shall be released from custody forthwith, if his continued detention is not required in connection with any other case. (A.K.BASHEER, JUDGE) (THOMAS P. JOSEPH, JUDGE) cl 5 W.P.(Crl.)No.415/08