IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 11TH APRIL, 2008 / 22ND CHAITHRA, 1930 WP(Crl.).No. 96 of 2008(S) ------------------------------- PETITIONER: ---------------- KUMARAN, AGED 60, S/O.KAVALAN, IKKARA HOUSE, KUTHIYATHODU KARA, PUTHENVELIKARA VILLAGE, ERNAKULAM DISTRICT. BY ADV. SRI.JAISON JOSEPH SRI.M.N.SANJITH RESPONDENTS: ------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, 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, CHENGAMANAD POLICE STATION, ERNAKULAM DIST. BY SPECIAL GOVT. PLEADER & LIAISON OFFICER SRI.K.K.RAVEENDRANATH. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (WP(Crl) No. 96 OF 2008) PETITIONER'S EXHIBITS: Ext.P1: Copy of order of detention dtd.31.1.2008 of third respondent. Ext.P2: Copy of representation submitted by the detenu before second respondent dtd.25.2.2008. Ext.P3: Copy of representation submitted by the detenu before the Chairman, Advisory Board dtd.25.2.2008. Ext.P4: Copy of the representation dtd.7.2.2008 submitted by the petitioner before second respondent. -True Copy- P.A.to Judge. P.R.RAMAN & V.K.MOHANAN, JJ. --------------------------------------------- W.P.(Crl).No. 96 of 2008 --------------------------------------------- Dated this the 11th day of April, 2008 J U D G M E N T Mohanan,J: The above writ petition is filed by the father of Sri.Saju, aged 27 years, S/o.Kumaran, Ikkara House, Kuthiyathodu Kara, Puthenvelikara Village, Ernakulam District challenging Ext.P1 order of detention dated 31.1.2008 issued by the third respondent by which the petitioner's son is detained as per the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (Act 34 of 2007)(hereinafter referred to for short as 'the Act' only). Hence he approached this Court by filing the above writ petition with a prayer to issue a writ of habeas corpus directing the respondents to produce his son, Sri.Saju, the detenu and to set him free forthwith. It is also prayed for quashing Ext.P1. 2. We heard the counsel for the petitioner as well as Mr.K.K.Raveendranath, the learned Special Government Pleader and the Liaison Officer. Though no counter affidavit is filed for and on behalf of the respondents, we WP(Crl) NO.96 of 2008 :-2-: are inclined to dispose of this writ petition in the light of the earlier orders of this Court in identical matters. 3. We had occasion to consider the validity of similar detention order passed by the detaining authority while exercising their powers under Section 3 (1) and 3(2) of the Act. On the basis of the decision of the Apex Court reported in Makhan Singh Tarsikka v. State of Punjab (AIR (39) 1952 SC 27)(C.N.7), we had held in W.P.(Crl)No.71 of 2008 that the detaining authority who exercises the powers under the provisions of Act 34 of 2007 has no power to detain initially the detenu for a period of six months as in the present case. 4. On a perusal of Ext.P1 order, it can be seen that the third respondent, the detaining authority issued Ext.P1 order, in exercise of his powers under Section 3 (1) and 3(2) of the Act, ordering to detain the detenu for a period of six months. In view of the above position of law settled by the Apex Court as also the above decision of this Court, the detaining authority has no jurisdiction to fix the period of detention initially for a period of six WP(Crl) NO.96 of 2008 :-3-: months. Therefore, Ext.P1 order is not sustainable and the same is liable to be quashed. 5. In the result, Ext.P1 order is quashed and the respondents are directed to release the detenu, Sri.Saju, aged 27 years, S/o.Kumaran, Ikkara House, Kuthiyathodu Kara, Puthenvelikara Village, Ernakulam District forthwith, if he is not required in any other case. The writ petition is allowed to the above extent and no order as to costs. P.R.RAMAN, Judge V.K.MOHANAN, Judge MBS/ WP(Crl) NO.96 of 2008 :-4-: P.R.RAMAN & V.K.MOHANAN, JJ. -------------------------------------------- O.P.NO. OF 2001 ------------------------------------ J U D G M E N T WP(Crl) NO.96 of 2008 :-5-: DATED: -2007