IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 WP(Crl.).No. 248 of 2007(S) --------------------------- PETITIONER: ------------ VASANTHI, W/O. RAVIDAS, VADEKKEPURA, VARODE, KOTTAI P.O., PALAKKAD DISTRICT. BY ADV. SRI.O.V.MANIPRASAD RESPONDENTS: ------------- 1. STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, PALAKKAD. 3. THE SUPERINTENDENT, CENTRAL PRISON, VIYOOR,THRISSUR. 4. THE SUB INSPECTOR OF POLICE, KOTTAI POLICE STATION, PALAKKAD. BY SPL. GOVT. PLEADER & LIAISON OFFICER SRI.K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/01/2008, THE COURT ON 18/01/2008 DAY DELIVERED THE FOLLOWING: WP(CRL)248/07 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE DETENTION ORDER NO.S1-2007/39628/9(1) DATED 7.9.2007. EXT.P2 - TRUE COPY OF THE GROUNDS OF DETENTION. EXT.P3 - TRUE COPY OF THE FIR NO.148/2007 DATED 5.9.2007 OF KOTTAYI POLICE STATION. EXT.P4 - TRUE COPY OF THE ORDER DATED 8.5.2007 IN B.A.NO.2506/2007 OF THIS HON'BLE COURT. EXT.P5 - TRUE COPY OF THE REPRESENTATION BY THE DETENU DT. NIL. EXT.P6 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU TO THE ADVISORY BOARD DT. NIL. EXT.P7 - TRUE COPY OF THE POSTAL RECEIPT. EXT.P8 - TRUE COPY OF THE DETAILED REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 29.7.2007. EXT.P9 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 29.9.2007 BEFORE THE CHAIRMAN, ADVISORY BOARD, SENT ON 1.10.2007. RESPONDENTS' EXTS. EXT.R1(a) – TRUE COPY OF CONFIRMATION ORDER DULY ACKNOWLEDGED BY THE DETENU ON 15.9.07. EXT.R1(b) – TRUE COPY OF CONFIRMATION ORDER DULY ACKNOWLEDGED BY THE DETENUE ON 18.9.07. EXT.R1(c) – TRUE COPY OF COMMUNICATION DATED 16.10.07. EXT.R3(a) – A TRUE COPY OF THE ORDER NO.S1-2007/39628/9(3) DATED 7.9.2007 ISSUED BY THE DISTRICT MAGISTRATE. EXT.R3(b) – A TRUE COPY OF THE CONFIRMATION ORDER NO.61476/SS.A5/2007/HOME DATED 13.9.2007. EXT.R3(c) – A TRUE COPY OF THE LETTER NO.GA/07 DATED 29.9.2007 T0 THE CHAIRMAN, ADVISORY BOARD. EXT.R3(d) – A TRUE COPY OF THE LETTER NO.GA/07 DATED 29.9.2007 TO THE ADDL. CHIEF SECRETARY, HOME DEPARTMENT. EXT.R4(a) – TRUE COPY OF THE CHARGE SHEET AND FIR IN CRIME NO.44/02 OF KOTTAYI POLICE STATION. EXT.R4(b) – TRUE COPY OF THE CHARGE SHEET, FIR AND STATEMENT OF THE COMPLAINANT IN CRIME NO.111/03 OF KOTTAYI POLICE STATION. EXT.R4(c) – TRUE COPY OF THE CHARGE SHEET, FIR AND STATEMENT OF THE WP(CRL) 248/07 COMPLAINANT IN CRIME NO.123/07 OF PALAKKAD TOWN SOUTH POLICE STATION. EXT.R4(d) – TRUE COPY OF THE JAIL ADMISSION AUTHORIZATION DULY ACKNOWLEDGED BY THE DETENU. EXT.R4(e) – TRUE COPY OF THE MEMO FOR EXECUTING THE ORDER OF DETENTION ACKNOWLEDGED BY THE DETENU. EXT.R4(f) – TRUE COPY OF NOTICE DATED 7.9.2007 SERVED BY THE 4TH RESPONDENT ON THE DETENU. EXT.R4(g) – TRUE COPY OF FIR IN CRIME NO.1148/07 OF KOTTAYI POLICE STATION ACKNOWLEDGED BY THE DETENU. /TRUE COPY/ K.BALAKRISHNAN NAIR & K.P.BALACHANDRAN, JJ. ----------------------------------------- W.P.(CRL.) NO. 248 OF 2007 ----------------------------------------- Dated 18th January, 2008. JUDGMENT Balakrishnan Nair, J. This writ petition is filed by the wife of a detenu, who has been detained under the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (Ordinance No.44/2007) (hereinafter referred to as “the Ordinance”), praying to issue a writ of habeas corpus for the production of the detenu before this Court and order his release. 2. The brief facts of the case are the following: The petitioner is the wife of the detenu Mr.Ravi @ Ravidas, aged 35 years, S/o.Kunju, residing at Vadakkepura Veedu, Varode, Kottayi, Palakkad. The detenu was taken into custody by the 4th respondent on 5.9.2007 and on 7.9.2007 he has been served with Ext.P1 order dated 7.9.2007, passed by the District Collector, Palakkad, detaining him under Sections 3(1) & (2) of the Ordinance. On the strength of the detention order, he is being detained in the Central Prison, Viyyur. Along with Ext.P1, he has been served with Ext.P2 grounds WPCR 248/2007 2 of detention also. The petitioner submits, the detenu was served with only photo copies of Exts.P1 and P2 and not authenticated copies of them. He does not know English and therefore, he was unable to read or understand Ext.P1. The detention order says that final reports have been filed against him before the competent criminal court in Crime Nos.44/02, 111/03 and 123/07. The offences alleged against him in the first crime are those under Sections 452, 427 and 398 of I.P.C and also under Section 4 read with 25(1)(b) of the Arms Act. The allegation was that he along with others formed an unlawful assembly with deadly weapons like sword, knife, wooden stick etc., trespassed into the hotel of the complainant, created an atmosphere of terror and destroyed various articles of the hotel. They also looted Rs.4500/- from there. On the information lodged by Mr.Appukuttan, who was running the hotel, the crime was registered. The second incident relates to the kidnapping of one Mr.Babu Joseph in a motorcycle with the intention to kill him. He was attacked while he was taken on the motorcycle and later pushed down from it, causing injuries to him. The offences alleged against the detenu in the said case were under Sections 143, 147, 364, 307 and 149 of I.P.C. The 3rd incident relates to the kidnapping of Mr.Nazir, for his failure to pay a loan he received from one of his relatives. He was taken by force in a red coloured Maruthi car to the courtyard of the detenu WPCR 248/2007 3 at Kottayi. He was attacked by the detenu with bamboo sticks and the same caused injuries to him. The said case involves the offences under Sections 365, 341 and 308 read with Section 34 of I.P.C. The District Magistrate on being satisfied that if the detenu remains at large, he would indulge in anti- social activities involving assault and criminal conspiracy against public, which would create a feeling of insecurity among them, passed orders detaining him, based on the report received from the police. The grounds of detention detailed in Ext.P2 were in Malayalam and the details of the above three cases were given in the grounds of detention. 3. The petitioner challenges the detention on the following grounds: She alleges that copies of the charge-sheets in the above three cases and connected cases were not supplied to the detenu. The Ordinance authorises the District Magistrate to act on the strength of the report of a Police Officer not below the rank of District Superintendent of Police. But, Ext.P1 order would show that the 2nd respondent District Collector acted on the report of the Sub Inspector of Police, the 4th respondent. The detenu was detained on the basis of the finding that he is a “known rowdy”. At the time of detention, he was served with a copy of the F.I.R. No.148/2007 dated 5.9.2007, based on which, action was initiated against him by the S.I of Police for detention under the Ordinance. Ext.P3 is the copy of the said WPCR 248/2007 4 F.I.R. While passing the detention order, the detaining authority did not consider Ext.P4 order of this Court in Bail Application No.2506/2007 dated 8.5.2007, granting him anticipatory bail in Crime No.123/07, which is the last of the three cases, which were relied on to detain him. The said bail order contained stringent conditions, which would ensure that while on bail, he will not repeat the commission of any offence. When the detention order was passed, either the police did not place the said order before the detaining authority or the said authority overlooked the same. If the detaining authority had applied its mind to Ext.P4, the detention order would not have been passed. The petitioner further submits, the Government were bound to confirm the detention order within ten days. The same was not done. The final report under Section 173 of Cr.P.C in crime No.123/07 was not filed before the concerned criminal court before 7.9.2007. Therefore, the detenu cannot be treated as a “known rowdy” in terms of the Ordinance. The Government violated the various procedural safeguards provided under the Ordinance and also under Article 22 of the Constitution of India. Though the detenu submitted a representation before the Government through the Superintendent of Central Prison, Viyyur, the same was not considered by the Government without delay. Therefore, the detention order is illegal. Based on those and other procedural irregularities WPCR 248/2007 5 in passing the detention order and taking consequential action, the petitioner prayed for release of the detenu. 4. The 1st respondent has filed a counter affidavit, denying all the allegations of the petitioner. The said respondent has admitted that though the detenu's representation was received from the jail on 3.10.2007, it has not considered the same. Instead, the representation was forwarded to the Advisory Board. The respondents 2 to 4 have filed separate counter affidavits. The petitioner has filed two reply affidavits, dealing with the averments in the counter affidavits filed by the respondents. 5. Heard Mr.O.V.Maniprasad, learned counsel for the petitioner and also Sri.K.K.Ravindranath, learned Special Government Pleader and Liaison Officer. 6. Having regard to the facts disclosed in this case by the pleadings of the parties, we feel that it is unnecessary for us to consider the various contentions raised by the petitioner, except the one under Article 22(5) of the Constitution of India, read with Section 7(1) of the Ordinance. In the writ petition, the petitioner has specifically pleaded that the detenu has filed a representation against the grounds of detention before the State Government through the Superintendent of Central Prison, Viyyur. In the counter affidavit filed by the 1st respondent, the receipt of that WPCR 248/2007 6 representation and its non-disposal are admitted. The relevant portions of the said counter affidavit reads as follows: “9. .............................. . So also, Sri.Ravi @ Ravidas has submitted a representation to cancel the detention order and set him at liberty. Government have examined the said representation received in Government through the Superintendent, Central Prison, Viyyur on 3.10.2007 and the same has been forwarded to the Secretary, Advisory Board, constituted under Section 8 of the KAAPO 2007 on 16.10.2007, since Government have submitted all the connected documents on 19.9.2007 before the Chairman, Advisory Board under KAAPO 2007 for their consideration under Section 9 of the said Act. Xxxxx xxxxx xxxxx xxxxx 16. It is submitted that the contention that the representation was not considered by the authorities is not correct. The representation of the detenu received in Government through the Superintendent, Central Prison, Viyyur on 3.10.2007 has been forwarded to the Chairman, Advisory Board, since all the documents have been placed before the Board as stipulated under the provisions of the Act 2007.” In view of the above admitted position of non-disposal of the detenu's representation by the Government, the learned counsel for the petitioner, relying on various decisions of the Apex Court, submitted that the continued detention of the detenu is illegal and unconstitutional. The learned Special Government Pleader, appearing for the respondents submitted that since the matter was pending before the Advisory Board, the Government forwarded the detenu's representation to the said Board for its consideration. WPCR 248/2007 7 7. Before dealing with the contentions of the petitioner, it is fruitful to refer to the constitutional/statutory provisions relevant for this case first. Articles 22(4) and (5) of the Constitution of India read as follows: “22. Protection against arrest and detention in certain cases: (1) ...... (4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.” (Emphasis supplied) Section 7(1) of the Ordinance reads as follows: “7. Grounds of order of detention to be disclosed:--(1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him WPCR 248/2007 8 and give him a copy of such order along with the grounds on the basis of which the order has been made and he shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against this arrest and detention.” (Emphasis supplied) Section 9 reads as follows: “9. Reference to Advisory Board:-- In every case where a detention order has been made under this Ordinance, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation if any made by the person affected, and in the case where the detention order has been made by an authorised officer, the report by such officer under sub-section (3) of section 3.” If the detention is beyond three months, the right to have the matter examined by the Advisory Board under clause (4) of Article 22 and irrespective of the period of preventive detention, the right to have the matter examined by the Government, based on the detenu's representation, are independent and separate constitutional safeguards. One is not a substitute for the other. Neither Article 22(5) nor Section 7(1) expressly provides that the representations filed by the detenu should be considered by the Government. But, those provisions imply a right in the detenu to have his representation considered by the Government expeditiously. The Constitution Bench of the Apex Court in K.M.Abdulla Kunhi v. Union of WPCR 248/2007 9 India [(1991)1 SCC 476] held as follows: “11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act. (See: Sk.Abdul Karim v. State of W.B. [(1969)1 SCC 433]; Pankaj Kumar Chakrabarty v. State of W.B. [(1969)3 SCC 400]; Shayamal Chakraborty v. Commissioner of Police, Calcutta [(1969)2 SCC 426]; B.Sundar Rao v. State of Orissa [(1972)3 SCC 11], John Martin v. State of W.B. [(1975)3 SCC 836]; Sk.Sekawat v. State of W.B. [(1975)3 SCC 249] and Haradhan Saha v. State of W.B. [(1975)3 SCC 198]. WPCR 248/2007 10 12. The representation relates to the liberty of the individual, the highly cherished right enshrined in Article 21 of our Constitution. Clause (5) of Article 22 therefore, casts a legal obligation on the Government to consider the representation as early as possible. It is a constitutional mandate commanding the concerned authority to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words “as soon as may be” occurring in Clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with. The requirement however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal. This has been emphasised and re-emphasised by a series of decisions of this Court. (See Jayanarayan Sukul v. State of W.B. [(1970)1 SCC 219]; Frances Coralie Mullin v. W.C.Khambra [(1980)2 SCC 275]; Rama Dhondu Borade v. V.K.Saraf, Commissioner of Police [(1989)3 SCC 173] and Aslam Ahmed Zahire Ahmed Shaik v. Union of India [(1989)3 SCC 277].” (Emphasis supplied) In view of the above authoritative pronouncement of the Constitution Bench, we feel that it is unnecessary to refer to the various decisions cited at the Bar. It is an admitted case that the Government have chosen not to dispose of the detenu's representation so far, but, have sent it to the Advisory Board. It appears, the Government are unaware that it has got a WPCR 248/2007 11 duty to consider and dispose of the detenu's representation. Otherwise, it would not have forwarded the representation to the Advisory Board without considering it. The representation filed before the Government by the detenu has to be considered and disposed of by itself. The failure of the Government to consider his representation expeditiously, makes the detention order vitiated for non-compliance with Article 22(5) of the Constitution of India. In this case, there is admitted non-disposal of the detenu's representation by the Government. Therefore, it is declared that the continued detention of the detenu is illegal. The order of detention Ext.P1 is quashed. The detenu shall be set at liberty forthwith. The Writ Petition is allowed as above. K.BALAKRISHNAN NAIR, JUDGE. K.P.BALACHANDRAN, JUDGE. Nm/ WPCR 248/2007 12