IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(Crl.).No. 60 of 2008(S) -------------------------- PETITIONER: ------------ JISHAMOL @ MANJU, W/O.ANILKUMAR, VAZHELIL VEEDU, KOTTAPURAM, ALANGAD P.O., ERNAKULAM DISTRICT. BY ADV. SRI.C.S.MANU SRI.S.K.PREMRAJ SRI.ANOOP JOSEPH SRI.ANOOP.V.NAIR SRI.ABHILASH AKBAR SRI.T.B.SIVAPRASAD RESPONDENTS: ------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, ERNAKULAM. 3. SUPERINTENDENT OF POLICE (RURAL), ALUVA, ERNAKULAM DISTRICT. 4. SUB INSPECTOR OF POLICE, ALUVA POLICE STATION, ALUVA. BY GOVERNMENT PLEADER SRI K.RAVEENDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 14-3-2008, THE COURT ON 25-3-2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ORDER DATED 3-10-2007 ISSUED BY THE 2ND RESPONDENT. EXT.P2: TRUE COPY OF ORDER DATED 8-10-2007 ISSUED BY THE IST RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER DATED 7-12-2007 PASSED BY THE IST RESPONDENT. EXT.P4: TRUE COPY OF JUDGMENT DATED 23-1-2008 BY THIS HONOURABLE COURT. EXT.P5: TRUE COPY OF THE REPRESENTATION DATED 27-1-2008 BY THE PETITIONER. EXT.P6: TRUE COPY OF THE MEMO DATED 2-2-2008 FILED BY THE PETITIONER'S COUNSEL. EXT.P7: TRUE COPY OF THE ORDER BEARING NO.72394/SS A5/2007 HOME DATED 12-2- 2008 PASSED BY THE IST RESPONDENT. EXT.P8: TRUE COPY OF THE ORDER DATED 16-12-2005 IN CRIMINAL M.C.NO.1551 OF 2005. //TRUE COPY// P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- W.P.Crl.No.60 of 2008 ---------------------------------------------- Dated 25th March, 2008. JUDGMENT Mohanan,J. The husband of the petitioner, one Anilkumar, is detained as per Ext.P1 order of detention issued by the 2nd respondent herein in exercise of his powers conferred on him under section 3(1) of the Kerala Anti-social Activities (Prevention) Ordinance, 2007 (hereinafter referred to for short 'KAAPO 2007'). Ext.P1 is the detention order. Challenging Ext.P1, the above writ petition is filed praying inter alia to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to release the petitioner's husband and also prayed for a writ of certiorari to quash Ext.P1,P2, P3 & P7 orders. 2. Initially, the very same petitioner approached this court by filing W.P.(Crl.) 303 of 2007 with a more or less very same prayer and by Ext.P4 judgment this Court has elaborately considered the contentions raised by the petitioner against Ext.P1 WPCR 60/2008 -: 2 :- and found that there is no illegality and accordingly that writ petition was dismissed. During the hearing of that writ petition, the counsel for the petitioner submitted that the Government has not considered the fact regarding his release on bail in the cases which are mentioned in the detention order and also the report of the Advisory Committee recommending for release of a similarly situated person. Therefore, while dismissing the earlier writ petition, this Court has observed that the Government will consider the representation which would be preferred by the petitioner. Thus the petitioner has filed Ext.P5 representation before the Government and the same has been considered by the Government and Ext.P7 order is passed by the Government declining the request of the petitioner. It is the above order as well challenged in this writ petition. 3. The Ist respondent has filed a detailed counter affidavit controverting all the contentions raised in this writ petition. Quoting the passage from Ext.P4 judgment, the Ist respondent contended that this Court has already considered the contention of the petitioner on merit and found against the petitioner and WPCR 60/2008 -: 3 :- therefore there is no further cause of action for the petitioner. It is also stated in the counter affidavit that pursuant to Ext.P5 representation and in compliance of the order of this court, the Government has considered the representation in detail and came into a conclusion that the contentions and claim raised in the representation are not sustainable and not acceptable. It is pointed out that even though the detenu has got bail in the first case mentioned in the detention order, subsequently he involved in similar or more or less grave offences, and he is repeating the offences though bail granted on previous cases. Therefore, the above fact itself is sufficient to show the conduct of the detenu. It is also contended that the fact that the Advisory Board recommended to release some detenus, cannot be treated as a reason for revocation of the detention order. The contention of the detenu in the present case and the contentions in other cases will depend upon the particular facts and circumstances involved in each case. 4. We have heard the learned counsel for the petitioner and Sri K.K.Raveendranath, Special Government Pleader and WPCR 60/2008 -: 4 :- Laision Officer. 5. The counsel for the petitioner submits that there is no proximity between the alleged offences and also the detention order. It is also argued that the detenue was released on bail in all those cases and this fact was not considered by the Government and the Advisory Board. It is further submitted that after the involvement of the detenu in the earlier occasion in certain cases, subsequently, he was not involved in any other case and all the cases in which he was implicated as accused, were taken place on or before 31-1-2006 and thereafter he was not involved in any crime. It is also pointed out by the counsel that the Advisory Board recommended to the Government for the release of one Mundadan Jaison, who is also a detenu under the above Ordinance. According to the counsel, the allegation against the said detenu is very serious and more grave when compared with the allegations against the husband of the petitioner. But the said detenu was released by the Government on the basis of the report and recommendation of the Advisory Board and therefore, the WPCR 60/2008 -: 5 :- Advisory Board as well as the Government took a highly discriminatory approach against the husband of the petitioner and such arbitrary approach has to be condemned and accordingly the petitioner's husband has to be released. 6. As stated earlier, we have already considered the contention of the petitioner while we were disposing of W.P(Crl.) 303/2007 as per P4 judgment. The facts and circumstances involved in the case shows that the detenu was involved in several serious offences and a rowdy history sheet has been opened and maintaining against the detenu in the Aluva Police Station. The records shows that the detenu had involved in illegal transportation and storage of liquor. We have already observed that the detenu was frequently involved in criminal cases within a short gap of time. Such fact itself is sufficient to show that though bail was granted in one crime, he was subsequently involved in similar or more grave offences and the same are repeating. Therefore, the granting of bail did not improve his conduct. On the other hand, the assessment of the police authorities as well as the detention authorities to the WPCR 60/2008 -: 6 :- effect that he is likely to involve and indulge in crimes in future unless he is detained by invoking the provisions of 'KAAPO 2007' is justified by his own conducts. Therefore, we find no illegality in Ext.P7 order passed by the government after consideration of Ext.P5 representation filed by the petitioner. 7. In Ext.P7 order, the Government has stated that the fact that the Advisory Board has recommended to release some detenu, cannot be treated as a reason for revocation as each case is evaluated on its merits with reference to the provisions of the Ordinance. We find that the above reasoning is quite legal and justifiable. Petitioner has no case that the petitioner's husband and Mundadan Jaison, who was released on the recommendation of the Advisory Committee, are involved in one and the same case or in all the cases in which the husband of the petitioner had involved and the said Mundadan Jaison was singled out and released from detention. In the absence of any such factual averments and evidence, it cannot be said that the Advisory Board or Government took an arbitrary and discriminatory approach against the husband of the petitioner. WPCR 60/2008 -: 7 :- Each case has to be considered in its own merit. Therefore, the release of a detenu in another case cannot be pressed into service for the release of the detenu in the present case. Hence, the reasons given by the Government as per Ext.P7 are correct and there is no illegality which warrants the interference of this Court. In the light of the above facts and circumstances and the discussion, we are of the opinion that there is no merit in the writ petition and accordingly, the same is dismissed. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- WPCR 60/2008 -: 8 :- V.K.MOHANAN, J. No.... Judgment/Order Dated: