IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(Crl.).No. 391 of 2009(S) --------------------------- PETITIONER: --------------- HAJIRA, W/O.MUSTHAFA, AGED 31 YEARS, CHULLIYIL HOUSE, KACHERIKKUNNU, PARAPPANANGADI, MALAPPURAM DIST. BY ADV. SRI.SUNNY MATHEW SRI.M.P.ABDUL LATHEEF RESPONDENTS: --------------- 1. THE DISTRICT MAGISTRATE, MALAPPURAM. 2. THE ADDITIONAL CHIEF SECRETARY, TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE HOME SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THIRUVANANTHAPURAM. BY ADDL.D.G.P. MR. K.K. RAVINDRANATH & GOVERNMENT PLEADER SRI P. RAVINDRA BABU FOR R1 TO 4 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 10/11/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.C. HARI RANI,JJ ============================== W.P.(CRL)NO. 391 OF 2009-S ============================ DATED THIS THE 10TH DAY OF NOVEMBER 2009 JUDGMENT Basant,J. This writ petition is filed by the petitioner, who is the wife of a detenue – Musthafa, S/o. Mohammed by name, who has been detained under Section 3 of the Kerala Anti Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA') vide Ext.P1 order. 2. Though various grounds were urged in support of this petition, in the course of arguments, the learned counsel realised that the impugned order has been passed by an Additional District Magistrate and District Collector-in-charge. Counsel thereupon promptly raised a contention by filing an additional reply affidavit that the impugned order is passed by an authority, who is not competent to pass such order. The impugned order is passed admittedly by one Sri. E. Surendran, Additional District Magistrate and District Collector-in-charge. The learned counsel for the petitioner contends that a valid order of detention under Section 3 of the KAAPA can be passed only by the Government or WPC.391/2009 -2- in the alternative, a District Magistrate duly notified under Section 3(2) of the KAAPA. Counsel points out that not even the District Magistrates ipso facto are authorised to pass orders under Section 3(2) of the KAAPA and it is only the District Magistrates who have been specifically authorised by the Government under Section 3(2) of the KAAPA by an appropriate notification who are competent and clothed with powers to pass an order of detention under Section 3(2) of the KAAPA. 3. Sri.E. Surendran, who has passed the order is admittedly only an Additional District Magistrate. He has not been appointed as a District Magistrate under Section 20(1) of the Code of Criminal Procedure. It is further pointed out that the said E.Surendran, Additional District Magistrate has not been clothed with powers under Section 20(2) of the Code of Criminal Procedure to discharge functions under the KAAPA. It is again pointed out that even admittedly the said Sri. E.Surendran is an Additional District Magistrate, who had stepped into the shoes of the District Magistrate, to fill the gap during his temporary absence. Such a person who temporarily occupies the chair of the District Magistrate during his absence is not under Section 20 WPC.391/2009 -3- (3) of the Code of Criminal Procedure competent to discharge any function other than the functions under the Cr.P.C. 4. The learned counsel for the petitioner places reliance on the decision of this Court in Sindhu v. State of Kerala in W.P. (Crl.)No.368/2009 dated 21-10-2009. We have in that decision held categorically that an Additional District Magistrate, who is in charge of the office of the District Magistrate temporarily to fill a vacuum created by absence of the District Magistrate is not legally clothed with the requisite jurisdiction to pass an order of detention under Section 3(2) of the KAAPA. 5. Inasmuch as the learned Additional Director General of Prosecution does not raise any contentions on facts or law to contend that the dictum in Sindhu (supra) is inapplicable in the facts scenario referred above, it follows that the impugned order of detention and the consequent detention cannot be upheld and the same has to be interfered with and set aside. In the absence of any attempt to support the order, by the learned A.D.G.P. and in the light of the decision in Sindhu (supra), we are not proceeding to advert the facts and law in greater detail. Suffice it to say, we are satisfied that the officer, who passed WPC.391/2009 -4- Ext.P1 order lacks the requisite legal and jurisdictional competence to pass the order under Section 3(2) of the KAAPA. 6. In the result: a) this petition is allowed. b) Impugned order, Ext.P1 is set aside. c)It is held that the detention of the detenu in furtherance of Ext.P1 is unjustified. d) It is directed that the detenu shall forthwith be released from custody by the prison authorities, if his continued detention is not necessary in any other cases. 7. The Registry shall forthwith communicate this judgment to the Superintendent of Police, Viyyur Central Prison where the detenu is said to be lodged. R. BASANT, JUDGE M.C. HARI RANI,JUDGE ks. WPC.391/2009 -5-