IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WP(Crl.).No. 438 of 2008(S) --------------------------- PETITIONER(S): --------------- SANKARA NARAYANAN NAIR, S/O.KUMARAN NAIR 61 YEARS, NARIKATHANAMKUZHIYIL HOUSE THUNDIAPPARA, KULATHUR MURI, KOTTANGAL VILLAGE. BY ADV. SRI.T.P.PRADEEP RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY ADDL.CHIEF SECRETARY TO GOVERNMENT , HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DISTRICT MAGISTRATE AND DISTRICT COLLECTOR, COLLECTORATE, PATHANAMTHITTA. 3. SUPERINTENDENT OF CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. 4. SUB INSPECTOR OF POLICE, PERUMPATTY POLICE STASTION, PATHANAMTHITTA. ADDL.DIRECTOR GENERAL OF PROSECUTION SHRI K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF DETENTION NO.B3-20139/08 DATED 13.6.2008 EXT.P2 TRUE COPY OF THE GROUNDS OF DETENTION DATED 13.6.2008 EXT.P3 TRUE COPY OF ORDER NO.GO(Rt)NO.3113/2008/HOME DATED 10.10.2008 //TRUE COPY// A.K.BASHEER & THOMAS P. JOSEPH, JJ. -------------------------------------- W.P.(Criminal) No.438 of 2008 S -------------------------------------- Dated this the 15th day of January, 2009. JUDGMENT Basheer, J. Petitioner challenges Ext.P1 order of detention passed against his son, Shri Anilkumar by the Authorised Officer under Section 3(2) of the Kerala Anti- Social Activities (Prevention) Act, 2007 (for short, 'the Act') in this Writ Petition. He also prays for issuance of a writ of certiorari to quash Ext.P2 grounds of detention and Ext.P3 order of confirmation of the detention order issued by the Government. 2. The detenu is admittedly involved in five crimes referred to in Ext.P2, grounds of detention. Out of five, three of the crimes at serial numbers 1 to 3 were registered by Perumpatty Police and the other two have been registered by the Mallappally Excise Range Officer. In Crime No.33 of 2007 registered by the Mallappally Excise Range Officer the allegation against the detenu is that he had committed the offence punishable under Section 55(a) of the Abkari Act. According to the Excise Range Officer, detenu had stored spirit. The case is pending trial. But in Crime No.9 of 2005 the charge is that the detenu was found carrying and selling 1.3 litres of arrack. In Crime No.144 of 2007 the detenu had allegedly stored 34 litres of spirit. This case is also pending trial. Crime No.119 of 2004 is yet again under Section 8(1)(2) of the Wp(Crl.)No.438/2008 2 Abkari Act on the allegation that the detenu was found selling 5.5 litres of arrack. In Crime No.87 of 2005 detenu and his brother had allegedly committed offences punishable under Section 341, 294(b), 323 read with Section 34 IPC. This case is also pending trial. 3. It is contended by the petitioner that the grounds of detention do not indicate that the Authorised Officer had arrived at the subjective satisfaction regarding the necessity to order detention of the detenu after a proper application of his mind. But the primary contention raised by the petitioner is that Ext.P1 order was passed by the Authorised Officer on the basis of the “credible information” received from the Station House Officer of Perumpatty Police Station vide FIR No.7/2008 dated January 9, 2008. Inviting our attention to Sub-section (1) of Section 3 of the Act, it is contended by the learned counsel that the Authorised Officer could not have ordered detention on the basis of the so-called information received from a Station House Officer. Section 3(1) of the Act postulates that the Government or the Authorised Officer shall issue an order of detention only on the basis of the information received from the Superintendent of Police concerned. We find considerable force in the above contention. 4. Learned Additional Director General of Prosecution submits that Exts.P1 and P2 will clearly show that all the relevant inputs furnished by the Superintendent of Police had been considered by the Authorised Officer to arrive at a subjective satisfaction to issue the order of detention. He points out that the antecedents of the detenu and his involvement in a series of crimes all of which, Wp(Crl.)No.438/2008 3 except one, relate to offences punishable under the Abkari Act will undoubtedly show that he is a 'bootlegger'. The detenu also satisfies the definition contained in Section 2(o)(ii) of the Act. Having perused the details of the crimes registered against the detenu, it cannot be said that the antecedents of the detenu are good enough. But still, the Authorised Officer could not have issued Ext.P1 order of detention on the basis of the so-called 'credible information' received from the Station House Officer, since going by the provisions contained in Section 3(1) of the Act the Authorised Officer can issue such an order only on the basis of the information/report received from a Police Officer not below the rank of Superintendent of Police. Having regard to the entire facts and circumstances, we are satisfied that Ext.P1 order is illegal and unsustainable and is liable to be quashed. We do so. The detenu shall be released from custody forthwith if his continued detention is not necessary in connection with any other case. A.K.BASHEER, Judge. THOMAS P.JOSEPH, Judge. cks