IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(Crl.).No. 263 of 2008(S) --------------------------- PETITIONER: ------------ SABI C.V., AGED 33 CHEMBAKASSERY HOUSE, NEAR SURESH HOSPITAL PATTERIPURAM, ALUVA. BY ADV. SRI.JAISON JOSEPH RESPONDENTS: ------------- 1. THE STATE OF KERALA REP. BY THE CHIEF SECRETARY GOVERNMENT SECRETARIAT,TRIVANDRUM 2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARAIT, TRIVANDRUM 3. THE DISTRICT COLLECTOR DISTRICT MAGISTRATE ERNAKULAM DIST 4. THE SUPERINTENDENT OF POLICE ERNAKULAM RURAL 5. THE SUPERINTENDENT CENTRAL PRISON, VIYYUR 6. SUB INSPECTOR OF POLICE ALUVA POLICE STATION ERNAKULAM DIST BY SHRI K.K. RAVEENDRANATH, ADDL.D.G.P. FOR R1-6 THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON 7/8/2008 DELIVERED THE FOLLOWING: P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No.263 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2008. JUDGMENT Ramachandran Nair, J. The writ petition is filed by the petitioner aggrieved by the detention of his brother under the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act'). He is under detention as per Ext.P1 order dated 18.6.2008. It is contended that the same is violation of Article 22(4) of the Constitution of India and the relevant provisions of the Act. 2. Ext.P1 is the order of detention passed by the District Magistrate, Ernakulam dated 18.6.2008. The detenue has been ordered to be detained with immediate effect for a period of six months at Central Jail, Viyyur. 3. Heard learned counsel for the petitioner Shri Jaison Joseph and Shri K.K. Ravindranath, learned Addl. Director General of Prosecutions, for the respondents. 4. In the counter affidavit filed by the respondents, it is pointed out in para 6 that Ext.P1 order has been approved by the Government of Kerala by Order No.44657/SSA5/2008/Home dated 19.6.2008, modifying the period of detention as three months. WPCR.263/2008 -2- 5. The question is whether the order of detention suffers from any patent illegality. The legal position has been explained by a Division Bench of this court in Anitha Bruse v. State of Kerala and others (ILR 2008 (2) Ker.408). After analysing the import of Article 22 of the Constitution and the various provisions of the Act, it was held in paragraph 14 in the following terms: “Thus, on a conjoint reading of Sections 3(3), 9, 10(1), 10(4) and Section 12 of the Act, one can understand that the initial order passed by the Government or the Officer authorised under sub- section (2) of Section 3, will remain only for a maximum period of 12 days unless the same is approved by the Government and the further period of detention is fixed by the Government under Section 10(4) on the basis of the opinion given by the Advisory Board under Section 10(1) and (3) within nine weeks from the date of detention of the persons concerned, for which the Government has to place the detention order within three weeks from the date of detention. That means the final order of the Government on the basis of the Advisory Board will have to be issued within nine weeks or 63 days. Thus, the final order, that may be issued by the Government by which it decides to approve the detention and to fix the period, shall not exceed six months from the date of detention in view of Section 12 of the Act. It is relevant to note that the periods fixed in these Sections are mandatory in nature and any lapse in taking steps or complying with the formalities within the time limit WPCR.263/2008 -3- fixed by the above provisions will entail the detention as illegal. Thus, on a scrutiny of the scheme envisaged by the Act, it can be seen that ample provisions and safeguards have been incorporated so as to safeguard the fundamental right of the citizens, against illegal arrest and detention, as contemplated by Article 22(4) especially, Article 22(4)(a) of the Constitution of India.” 6. Therefore, when the initial order itself has been passed for a period of six months, the same violates Article 22(4) of the Constitution of India. The subsequent order of approval will not provide any life to the said order (Ext.P1) which is invalid from its inception. In that view of the matter, we quash Ext.P1 and the subsequent order dated 19.6..2008 approving the initial order of detention. The detenue will be released forthwith if he is not wanted in any other case. The writ petition is allowed as above. No costs. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.) kav/