IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 13TH MAY 2008 / 23RD VAISAKHA 1930 WP(Crl.).No. 149 of 2008(S) -------------------------------------- PETITIONER: ----------------- SHAMLA,AGED 27 YEARS, W/O. SULFIKAR @ ABI, ADHIMAPARAMBIL HOUSE,ARAKLULAM DESOM, METHALA VILLAGE,KODUNGALLUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.V.M.KRISHNAKUMAR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT(HOME AND VIGILANCE) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE AND DISTRICT COLLECTOR,THRISSUR. 3. THE SUPERINTENDENT OF CENTRAL PRISON, VIYYUR. 4. THE SUB INSPECTOR OF POLICE, KODUNGALLUR POLICE STATION, KODUNGALLUR, THRISSUR. BY SPECIAL GOVERNMENT PLEADER SRI.K.K.RAVEENDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 13/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN & P.N.RAVINDRAN, JJ. ------------------------------------------ W.P.(CRL) No.149 of 2008-S ------------------------------------------------------- Dated, this the 13th day of May, 2008 JUDGMENT Ravindran, J. In this petition filed under Article 226 of the Constitution, the petitioner seeks the release of her husband Sulfikar @ Abi who has been detained under the provisions of Kerala Anti Social Activities (Prevention) Act, 2007 (“Act for short). She also challenges Ext.P1 order of detention passed by the second respondent and Ext.P5 order passed by the State Government approving the order of detention. 2. We heard Sri.V.M.Krishnakumar,the learned counsel for the petitioner and Sri.K.K.Raveendranath, the learned Government Pleader appearing for the respondents. 3. The learned counsel for the petitioner, relying on the Division Bench decisions of this Court in W.P(Crl) No.71/2008 and Ext.P6 judgment in W.P.(Crl.) No.54/2008 contended that the District Magistrate, the competent authority under the Act, has no power or jurisdiction to order detention of any person for a period in excess of three months and that the mere fact that the State Government has chosen to confirm the said order by Ext.P7 order dated 19-2-2008 does not confer validity on the said order of detention and on that sole WPCR.149/2008 -2- ground the order of detention is liable to be quashed. 4. In Ext.P6 judgment, a Division Bench of this Court on an elaborate consideration of the law on the point and after referring to an earlier decision of a Division Bench of this Court in WP (Crl.) 71/2008 held that under the Act, the detaining authority has no power to order detention of any person for a period in excess of three months and that the confirmation of the order of detention by the State Government does not confer validity on the order of detention. It was held that the order of detention passed under Section 3 (1) of the Act detaining a person beyond a period of three months is illegal and that confirmation of such an order by the State Government is of no consequence. 5. By Ext.P1 order of detention, the detaining authority, namely the District Collector & District Magistrate, Thrissur has ordered detention of the petitioner's husband for a period of six months. By Ext.P5 order, the State Government approved the order of detention and by Ext.P7 the order of detention was confirmed. In the light of the law laid down by this Court in Ext.P6 judgment and the interpretation placed by this Court on Sections 3(1) and 3 (2) of the Act, the order of detention evidenced by Ext.P1 cannot be sustained. As held by the Division Bench, the mere fact that the State Government has confirmed the order of detention does not render it WPCR.149/2008 -3- valid. Therefore, we hold that the detention of the petitioner's husband pursuant to Ext.P1 order of detention as confirmed by the State Government in Ext.P7, is illegal. We therefore, quash Ext.P1 as confirmed by Ext.P7 and direct the respondents to release the petitioner's husband Sulfikar @ Abi named in Ext.P1 forthwith, if his detention is not required in connection with any other case. (K.T.SANKARAN) JUDGE. (P.N.RAVINDRAN) JUDGE. MS