IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(Crl.).No. 303 of 2007(S) --------------------------- PETITIONER: ------------ JISHAMOL @ MANU,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 RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HOME GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE ADVISORY BOARD CONSTITUTED UNDER SECTION 8 OF THE KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT NO. 94 OF 2007) REPRESENTED BY ITS CHAIRMAN, THIRUVANANTHAPURAM. 3. ADDITIONAL CHIEF SECRETARY, HOME AND VIGILANCE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, ERNAKULAM. 5. SUPERINTENDENT OF POLICE (RURAL) ALUVA, ERNAKULAM DISTRICT. 6. STATION HOUSE OFFICER ALUVA POLICE STATION, ALUVA. BY GOVERNMENT PLEADER SRI K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON18-1-2008, THE COURT ON 23-1-2008 DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER'S HUSBAND DATED 3-10-2007. EXT.P2: TRUE COPY OF THE ORDER DATED 8-10-2007 ISSUED BY THE IST RESPONDENT TO THE PETITIONER'S HUSBAND. EXT.P3: TUE COPY OF THE REPRESENTATION DATED 9-11-2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU BEFORE THE 2ND RESPONDENT DATED 29-10-2007. EXT.P5: TRUE COPY OF THE PETITION SUBMITTED BY THE MOTHER OF THE DETENU TO THE 2ND RESPONDENT. EXT.P6: TRUE COPY OF THE PETITION SUBMITTED BY THE MOTHER OF THE DETENU TO THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF THE ORDER DATD 7-12-2007 ISSUED BY THE IST RESPODNENT TO THE PETITIONER'S HUSBAND. //TRUE COPY// P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- W.P.(CRL.) N0.303 OF 2007 ---------------------------------------------- Dated 23rd January, 2008. JUDGMENT Mohanan, J. The petitioner herein is the wife of one Anil Kumar @ Anil, son of Parameswaran who is detained under section 3 of the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (hereinafter referred to for short `the Ordinance'). The petitioner challenges the detention of the petitioner's husband and prayed for the issuance of a writ of mandamus or any other appropriate writ, order or direction directing the respondents to produce the petitioner's husband Anil Kumar who is detained as per Exts.P1, P2 and P7 and to order his release. 2. The petitioner's averments are as follows: The petitioner's husband is detained as per Ext.P1 order issued by the 4th respondent and the Ist respondent has confirmed the above detention order as per Ext.P2 order. W.P.CR. 303/07 -:2:- Exts.P1 and P2 are liable to be set aside as the same are illegal and unsustainable since the respondents concerned miserably failed to consider the relevant facts while issuing the above orders. It is also stated that there is a long gap of time between the alleged anti-social activities and the detention order and hence there is no justification in passing the detention order. It is also averred that the respondents have failed to take note of the fact that the detenu has not indulged in any anti-social activities for the last two years and he was leading a peaceful life. It is the further case of the petitioner that though various representations filed, viz., Exts.P3, P4, P5 and P6 before various authorities, none of the above representations has been taken into account. It is also averred that though several cases have been instituted against the detenu, he was not convicted in any of such cases and at the same time he was acquitted by the court in C.C.Nos.3210/2002, 3209/2002, 3207/2002, 3203/2002, S.C.No.819/2005 and M.C No.87/2002. According to the W.P.CR. 303/07 -:3:- petitioner, without considering the above acquittals and also the representations made through Exts.P3 to P6, the Advisory Board reported to the Government that the detention is justifiable and thus the Government has passed Ext.P7 order which according to the petitioner, is illegal. It is also pointed out that the 2nd respondent - Advisory Board has recommended to the Government for the release of one Mundadan Jaison though he was involved in various cases including offence under section 302 of I.P.C.. Apart from that murder case he was also involved in several other serious cases. But on the basis of the report of the Advisory Board, the Government has released him from jail within two months from the date of detention. According to the petitioner, the petitioner's husband Anil Kumar was not involved in any serious crimes as that of Mundadan Jaison and therefore, the Advisory Board as well as the Government took a discriminatory attitude against the petitioner's husband and therefore, the petitioner's husband is liable to be released forthwith. W.P.CR. 303/07 -:4:- 3. Respondents 1 and 4 have filed separate counter affidavits justifying the detention order issued against the petitioner's husband. Along with the counter affidavit filed by the 4th respondent, he has produced Ext.R4(a), R4(b) and R4 (c). Ext.R4(a) is the detention order issued against the petitioner's husband. Ext.R4(b) is the grounds for the detention order and Ext.R4(c) is the confirmation order issued by the Government. 4. We have heard the counsel for the petitioner as well as Sri K.K.Ravindranath, Special Government Pleader and Laision Officer. 5. During the hearing of the matter, the counsel for the petitioner vigorously argued on the point that after the registration of the last crime in which the date of occurrence was on 31-1-2006, the detenu was not involved in any criminal case and there is a long gap between the date of detention order, i.e. 3-10-2007 and the date of occurrence in the last criminal case. Thus according to the counsel for the W.P.CR. 303/07 -:5:- petitioner, there is no nexus between the alleged crime registered against the detenu and the detention order and therefore the order is liable to be set aside. 6. We have perused the documents made available to us including the order passed by the Advisory Board in R.C.63/2007. The cases mentioned in the detention order and the details given in the grounds of detention shows that the detenu is involved in several serious offences. It is also brought to our notice that a rowdy history sheet has been opened and maintaining against the detenu in the Aluva Police station. It is also borne out from the records that the detenu had indulged in illegal transportation and storage of liquour. So, the antecedents of the detenu disclosed his criminal background. It is also gatherable that the detenu was frequently involved in criminal cases with short gaps. The above factual aspects are sufficient to justify the detention order issued by the 4th respondent. The very purport of the Ordinance is to prevent persons like the detenu from indulging W.P.CR. 303/07 -:6:- in criminal activities. In the particular facts and circumstances involved in the case of the detenu, it can be seen that his past history points out that he may indulge in criminal activities at any time. The police report also shows that he is active in anti-social activities, therefore the order of detention issued by the 4th respondent is absolutely legal and correct and the 4th respondent is perfectly justified in forming of opinion that the detenu is likely to endanger public tranquility and order, if he is not detained. 7. Finally, the counsel for the petitioner submitted that the Government as well as the 4th respondent have miserably failed to take into account the fact that the detenu has been granted bail in all the cases and those facts were not considered by the 4th respondent - detention authority and also the Government who issued the confirmation order. On the other hand, the learned Special Government Pleader submitted that though he was released on bail, he was subsequently involved in repeating the offences including abkari offences and W.P.CR. 303/07 -:7:- therefore there is no meaning in saying that the authority failed to consider the factum that the detenu was released on bail. It is also pointed out by the learned Special Government Pleader that it is for the first time he took such plea before this court. Even in the writ petition or before the concerned authority he has not taken up such plea. On hearing such reply, the counsel appearing for the petitioner submitted that on behalf of the detenu, certainly a representation will be filed before the Government pointing out all these aspects and in such case, the Government may be directed to dispose of the same with a time limit. No objection was raised from the side of the respondents against this suggestion. 8. Having regard to the facts and circumstances involved in the case, we are of the opinion that in case a representation is moved before the Government, the same can be directed to be disposed of. Therefore in the event of the petitioner filing a representation before the Ist respondent- Government, the Ist respondent is directed to take up the same W.P.CR. 303/07 -:8:- into consideration and dispose of the same within two weeks from the date of receipt of such representation. Subject to the above direction, the Writ Petition is dismissed. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- W.P.CR. 303/07 -:9:- V.K.MOHANAN, J. 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