IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 16TH JULY 2009 / 25TH ASHADHA 1931 WP(C).No. 15895 of 2009(F) -------------------------- PETITIONER: --------------- J.VISWANATHAN HAREESH BHAVAN, KOTHAPURAM MURI, WEST KALLADA, KOLLAM DISTRICT. BY ADV. DR.K.P.SATHEESAN RESPONDENTS: --------------- 1. STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY HOME (S.S.A) DEPARTMENT GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR KOLLAM. 3. THE SUPERINTENDENT OF POLICE KOLLAM. 4. THE CIRCLE INSPECTOR OF POLICE SASTHAMCOTTA, KOLLAM DISTRICT. ADDL.R5: THE SECRETARY, ADVOSORY BOARD, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT, 2007 SREENIVAS, VIVEKANANDA ROAD, ELAMAKKARA P.O., ERNAKULAM. ADDL.R5 IS IMPLEADED AS PER ORDER DT.26.6.2009 IN I.A.NO.7715/2009 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------- W.P.(C) No. 15895 OF 2009 ---------------------------------------- Dated this the 16th day of July, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The petitioner, apprehending that he may be arrested under the provisions of the Kerala Anti-social Activities (Prevention) Act, 2007 on the allegation that he is a known goonda, filed the Writ Petition. At that time, he has not received the detention order. But, pursuant to the interim direction of this Court, the detention order has been served on him. The petitioner has produced the same along with I.A.No.8502/2009 filed for amending the Writ Petition. The prayers in the Writ Petition, when it was filed, were the following: i) to direct the 2 nd respondent to produce the order dated 19.2.2009 passed by him against the petitioner and quash the same by issuing a writ in the nature of certiorari or such other appropriate writ, order or direction; W.P.(C) No.15895/2009 2 ii) to issue a writ of mandamus or order or direction to the 4 th respondent to see that the petitioner is not detained under the provisions of the Anti Social Activities (Prevention) Act 2007 since the petitioner is not convicted in two crime cases which were registered against the petitioner within the previous seven years; iii) to declare that the petitioner is not liable to be detained under the provisions of the Kerala Anti Social Activities (Prevention) Act 2007 since the petitioner has not committed any offence as defined under Section 2(J) of the Act.” By amendment, he has incorporated the following prayers also. “v) to declare Section 3 & 7 of the Kerala Anti Social Activities (Prevention) Act 2007 as ultra vires and unconstitutional; vi) to issue a writ of certiorari or such other appropriate writ, order or direction quashing Ext.P3 order of the 2 nd respondent dated 19.2.2009 issued under the Kerala Anti Social Activities (Prevention) Act 2007.” 2. When a detention order is passed, normally, he must surrender before the concerned police officer. While in detention, he will be served with the grounds for detention. Then, he can invoke the remedies available to him under the W.P.(C) No.15895/2009 3 statute against the detention by filing representation against the detention order before the Government and the Advisory Board. Thereafter, he can move this Court for a writ of habeas corpus, if he feels that his detention is illegal and his representation was not properly considered by the Government or Board. The Apex Court has time and again held against entertaining challenge against a preventive detention order before the person has been arrested or surrendered before the police. Apparently, to get over that position, the petitioner has amended the Writ Petition, incorporating the challenge against Sections 3 and 7 of the aforementioned Act. Those provisions read as follows: “3. Power to make orders for detaining known Goondas and Known Rowdies:- (1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. W.P.(C) No.15895/2009 4 (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 13 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. W.P.(C) No.15895/2009 5 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 and give him a copy of such order. (2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention. Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interest of internal security or national security. W.P.(C) No.15895/2009 6 (3) The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or to the Advisory Board. (4) The order of detention shall not be deemed to be invalid merely because one or more of the facts of circumstances cited among the grounds are vague, non-existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised Officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or a known rowdy are satisfied.” 3. Going by the amendment application, we notice that the only ground taken is that those provisions offend the fundamental rights of the petitioner guaranteed under Article 21 of the Constitution of India. Mere bald assertions that those provisions violate Article 21 of the Constitution of the India are not sufficient to raise a valid challenge against those provisions. Therefore, we hold that the challenge raised against the W.P.(C) No.15895/2009 7 constitutional validity of those provisions is plainly unsustainable. Since the detention order is not so far executed, it is not proper for this Court to consider the validity of the detention order in this proceedings under Article 226 of the Constitution of India. Accordingly, the Writ Petition is dismissed as not maintainable. But, the contentions of the petitioner against the detention order are left open, which he can urge before appropriate forums. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps