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. 440 of 2009(S) --------------------------- PETITIONER : --------------- ASMABI AGED 55 YEARS, W/O. KUNCHEKKU THANARI HOUSE MAJERI, MALAPPURAM DISTRICT. BY ADV. SRI.P.SAMSUDIN RESPONDENTS: --------------- 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT MAGISTRATE CIVIL STATION, MALAPPURAM. 3. THE SUPERINTENDENT OF POLICE MALAPPURAM. ADDL.DIRECTOR GEN.OF PROSECUTION SRI.K.K.RAVINDRANATH FOR R1-3 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.440 of 2009 ------------------------------------- Dated this the 10th day of November, 2009 JUDGMENT BASANT, J. This petition has been filed by the petitioner, whose son Abdul Nazer @ Enni, aged 35 years, is detained as per Ext.P3 order passed under Section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as the `KAAPA'). That order is seen passed by an Additional District Magistrate and District Collector in charge. 2. Before us the learned counsel for the petitioner submitted that the impugned order is one without jurisdiction inasmuch as the order has been passed not by the District Magistrate, but by an Additional District Magistrate temporarily holding charge as District Magistrate. In the light of the decision in Sindhu v. State of Kerala in W.P(Crl) No.368 of 2009 dated 21.10.09 passed by this Court the Additional District Magistrate and District Collector in charge does not have the requisite legal competence or authority to pass an order of detention under Section 3 of the KAAPA, contends the learned counsel for the petitioner. The order of detention Ext.P3 and the consequent detention is hence liable to be set aside and the W.P(Crl.) No.440 of 2009 2 detenu is entitled to be set at liberty, contends the learned counsel for the petitioner. 3. The learned Additional Director General of Prosecution was requested to take instructions. Today when the matter came up for hearing, there is no attempt made by the learned Addl.D.G.P to defend Ext.P3 order. 4. Admittedly under Section 3(i) of the KAAPA the Government or its delegates alone have jurisdictional competence to pass an order of detention. Under Section 3(2) of the KAAPA, delegated authority can be exercised only by a District Magistrate. All District Magistrates cannot exercise such authority. Only the District Magistrates duly notified by the Government under Section 3(2) of the KAAPA can exercise such jurisdiction. It is not disputed that the Addl.District Magistrate, Malappuram - Sri. E.Surendran is not a District Magistrate appointed under Section 20(1) Cr.P.C. There is also no contention that the said official has been invested with powers to act under the KAAPA under Section 20(2) Cr.P.C. Under Section 20(3) Cr.P.C, an incumbent stepping into the office of the District Magistrate cannot exercise powers under the KAAPA. Section 20(3) Cr.P.C authorises him only to exercise the powers under the Code. W.P(Crl.) No.440 of 2009 3 5. We have considered the question in detail in Sindhu v. State (supra) and have come to the conclusion that an Additional District Magistrate temporarily stepping into the shoes of the District Magistrate does not have the jurisdictional competence to pass an order of detention under Section 3(2) of the KAAPA. 6. We are, in these circumstances, satisfied that Ext.P3 order of detention and the consequent detention of the detenu deserve to be set aside. In the absence of any contentions contra, we do not think it necessary to advert to facts and law in any greater detail. Suffice it to say that the question stands concluded by the decision in Sindhu v. State (supra). No arguments or contentions contra are advanced by the learned Additional Director General of Prosecution on behalf of the State. 7. In the result: a) This Writ Petition is allowed; b) Ext.P3 order is set aside; c) Consequently the detention of the detenu vide Ext.P3 order is found to be unjustified; d) It is directed that the detenu shall forthwith be released from custody by the prison authorities if his further detention is not necessary in connection with any other case. W.P(Crl.) No.440 of 2009 4 e) The Registry shall forthwith communicate the directions to the prison authorities at Central Prison, Viyyur. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-