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 4TH APRIL 2008 / 15TH CHAITHRA 1930 WP(Crl.).No. 9 of 2008(S) ------------------------- PETITIONER: ------------ SUGANTHI, AGED 38 YEARS, D/O. VASANTHI, T.C.12/846, BARTON HILL, KUNNUKUZHI, THIRUVANANTHAPURAM. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SHAJIN S.HAMEED RESPONDENTS: ------------- 1. THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, COLLECTORATE, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADDL.DIRECTOR GENERAL OF PROSECUTIONS SRI K.K.RAVINDRANATH THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE PROCEEDINGS NUMBER S11-44795/07 DATED 13-6-07 THE DISTRICT MAGISTRATE, THIRUVANANTHAPURAM. EXT.P2: TRUE COPY OF THE GROUNDS OF DETENTION. EXT.P3: TRUE COPY OF THE ORDER NO.72527/SS.A5/2007/HOME DATED 22-10-2007. EXT.P4: TRUE TRUE COPY OF THE UNDATED COMMUNICATION RECEIVED BY THE DETENU. EXT.P5: THE TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU THROUGH THE SUPERINTNEDENT, CENTRAL PRISON. EXT.P6: TRUE COPY OF THE PROCEEDINGS G.O(RT.) NO.3441/2007 HOME DATED 15-12- 2007. EXT.P7: TRUE COPY OF THE ORDER IN CRL.M.C.571/07 ON THE FILES OF THE SESSIONS COURT, THIRUVANANTHAPURAM. EXT.P8: TRUE COPY OF THE ORDER IN CRL.M.C.687/07 ON THE FILES OF THE SESSIONS COURT, THIRUVANANTHAPURAM. EZT.P9: TRUE COPY OF THE REPRESENTATION SUBMITTED BEFORE THE CHAIRMAN OF THE ADVISORY BOARD BY THE PETITIONER. //TRUE COPY// P.R.RAMAN & V.K.MOHANAN,JJ. ---------------------------------------------- W.P.(Crl.)N0.9 of 2008 ---------------------------------------------- Dated, 4th April, 2008. JUDGMENT Mohanan, J To redress the grievance of the petitioner regarding the alleged illegal detention of her husband namely, one Saboo @Gundukad Saboo @ Saboo Prafuddin, the petitioner has approached this Court by filing the above Writ Petition (Crl.) invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. According to the petitioner, her husband is detained under sections 3(1) and 3(2) of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to for short 'Act only') which according to the petitioner is illegal and hence she prayed inter alia for the issue of a writ in the nature of certiorari or any such other writ, direction or orders calling for the records leading to Exts.P1 and P3 and quash the order of detention under Ext.P1 as confirmed in Ext.P3. She also prayed to issue a writ of habeas corpus WP(CR) 9/08 -:2:- commanding the 3rd respondent to set at liberty the detenu - Saboo @ Gundukad Saboo @ Saboo Prafuddin forthwith. 2. The following are the averments raised in the above writ petition (Crl.): As per Ext.P1 issued by the 2nd respondent, the husband of the petitioner is detained under section 3(1) of the Act and along with Ext.P1, Ext.P2 grounds of detention was also there. It is the specific contention of the petitioner that though Ext.P1 order was dated 13-6-2007, due to unexplained and inordinate delay and lackadaisical manner of execution, the detention order was executed only on 11-10-2007. As per the order of confirmation dated 22-10-2007 which produced along with the writ petition as Ext.P3, detention order passed by the 2nd respondent was confirmed by the Government and the confirmation was served on the detenu on 24-10-2007. Along with the confirmation order, Ext.P4 communication was received by the detenu by which the detenu was WP(CR) 9/08 -:3:- informed that he can a file representation before the Additional Chief Secretary, Home, or before the Secretary, Kerala Anti Social (Prevention) Ordinance Advisory Board. According to the petitioner, Ext.P5 representation was filed. The Advisory Board confirmed the detention for a period of 6 months from 11.10.2007 and the detention order will terminate on 11-4-2008. It is the specific case of the petitioner that the detenu was very much available in the station and he did not abscond and it is also the case of the petitioner that the detenu was on bail in the cases stated in the order of detention and he was regularly appearing before the concerned courts. It is also averred that apprehending false implication in crimes, the detenu has taken several steps and also filed a representation before the Chairman of the Advisory Board. 3. Denying the averments contained in the writ petition, separate counter affidavits were filed by respondents 1 and 2. According to the counter affidavits, the husband of the petitioner come within the definition of WP(CR) 9/08 -:4:- 'known rowdy' and the materials available on record satisfied the 2nd respondent that the action under the provisions of the Act has to be initiated against the detenu and accordingly, Ext.P1 order of detention was issued by the 2nd respondent. According to the respondents, a copy of the order of detention and grounds on the basis of which the order of detention was made were served on the detenu on 11-10-2007, at the time of his arrest. After executing the order, the 2nd respondent reported the matter to the Ist respondent together with the copy of the order of detention and supporting materials on 16-10- 2007 which was received by the Ist respondent on 17-10- 2007. Thus, according to the respondents, the detenu can be classified as 'known rowdy' as defined in the Act and if he is allowed to continue his anti-social activities unrestricted, it will cause danger, alarm or a feeling of insecurity or cause threat to public life among the general public or residents of Thiruvananthapuram city. Thus the 2nd respondent has rightly issued the order of detention WP(CR) 9/08 -:5:- and the same was confirmed under section 3(3) of the Act. The representation filed by the detenu was considered and the same was rejected and the order of rejection was informed the detenu on 25-1-2008. 4. We have heard Sri Sasthamangalam S.Ajithkumar, the counsel appearing for the petitioner as well as Sri K.K.Ravindranath, the Special Government Pleader & Laision Officer. 5. During the course of argument, the counsel submitted that Ext.P1 order is though dated 13-6-2007, the same was served on the detenu only on 11-10-2007 and therefore, there is a delay of 4 months. Such delay itself is sufficient to show the non application of mind by the detaining authority as well as the sponsoring authority. It is also pointed out by the counsel that the cases mentioned in the order are not the one mentioned in the grounds for the detention. He took us through Ext.P1. Item Nos.1 and 3 to 6 mentioned in Ext.P1 are the cases where the investigation is not completed and investigation WP(CR) 9/08 -:6:- is still going on and therefore there is no application of mind by the 2nd respondent. It is also pointed out that item No.2 mentioned as Crime No.216/2001 in Ext.P1 is a case find no place in Ext.P2 grounds for detention. The above facts would further substantiate the non application of mind. The learned counsel further submitted that though Ext.P1 is dated 13-6-2007, the same was served only on 11-10-2007 and the same is crystal clear from the endorsement contained in Ext.P1. According to the counsel, the Circle Inspector of Police, Peroorkada police station was authorised for execution as directed by the Deputy Commissioner of Police, Thiruvananthapuram city only on 1-10-2007 and accordingly, the order was executed on the next day, i.e. on 1-10-2007. Thus According to the counsel, there is a delay of more than 4 months in executing the order. The above delay itself is sufficient to show that there is no basis for the subjective satisfaction of the District Collector that unless the detenu is arrested and detained, he is likely to indulge in further WP(CR) 9/08 -:7:- criminal activities. Therefore, the counsel submitted that he may be ordered to be released by allowing the writ petition. 6. On the other hand, the learned special Government Pleader submitted that investigation in the above mentioned cases are already over and charge sheets were submitted. It is also submitted that copy of Ext.P1 order was given to various Circle Inspectors of Police coming under the jurisdiction of the Deputy Superintendent of Police and since the detenu was absconding, the order could not be executed in time. Therefore, the order when entrusted to the concerned Circle Inspectors, they failed to serve the copy of the order and hence they returned the same and lastly, Ext.P1 order was returned to the Deputy Superintendent of Police and on such receipt, he entrusted the same to Mr. Radhakrishnan, C.I. of Police on 1-10-2007 and then only Ext.P1 could be executed. Thus according to the Government Pleader, there is no delay or laches in WP(CR) 9/08 -:8:- executing Ext.P1 order. 7. We have anxiously considered the rival contentions and submissions made at the bar and also perused the materials on record including the impugned order namely, Ext.P1. On a perusal of Ext.P1 order dated 13-6-2007, issued by the 2nd respondent by which the husband of the petitioner is detained , it can be seen that the detenu was placed under detention with immediate effect for a period of 6 months at the central Jail at Thiruvananthapuram. So the total period of detention fixed as per the impugned order is 6 months. Article 22 (4) of the Constitution of India mandate that no law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless the Advisory Board constituted is of opinion that there is sufficient cause for such detention. 8. We had occasion to consider the challenge against similar order passed by a another detaining authority under the same provisions of the Act. In W.P.(Crl.) No.71 WP(CR) 9/08 -:9:- of 2008, the District Collector therein who is the detaining authority under the same provisions of the Act issued a detention order and sought to assail the same on the ground that the constitutional mandate empower the detaining authority for detaining a person under the Preventive Detention Act only for a total period of 3 months and the order detaining a person more than 3 months will be illegal and unconstitutional. In that case, there was also prayer and plea to declare that section 12 of Act 34 of 2007 is ultra vires and unconstitutional as the same is against the constitutional provisions contained in Article 22(4) of the Constitution. By the judgment dated 4-4-2008 in W.P.(Crl.)No.71 of 2008, we have found that section 12 of the Act 34/2007 is intra vires and within the limit of constitutional provision and there is nothing illegal and arbitrary. But by the very same judgment we have held that a detaining authority while exercising his powers under section 3(1) of the Act cannot fix the total period of the detention more than WP(CR) 9/08 -:10:- three months in the light of the decision of the Apex Court in Makhan Singh v. State of Punjab (I) (AIR (39) 1952 Supreme Court 27 (C.N.7). In paragraph 4 of the above decision, the apex Court has held: “Whatever might be the position under the Act before its amendment in February 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (S.9) and provides that if the Board reports that there is sufficient cause for for the detention “the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit” (S.11).It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified the Government should determine what the period of detention should be and not before. The fixing of the period of WP(CR) 9/08 -:11:- detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act and cannot be supported.” Therefore in that case we held that the order of the detention issued by the District Collector therein is without jurisdiction and accordingly quashed the same. In the present case also, as pointed out earlier, Ext.P1 order issued by the 2nd respondent shows that the initial detention period fixed as 6 months which is contrary to the settled position of law as held by the Apex Court in the above decision. 9. In the light of the above finding we are not proposed to enter into any finding on merit regarding the contentions on factual grounds. 10. In the light of the above discussion, we hold that Ext.P1 order is not in accordance with the constitutional mandate and not in terms of the provisions contained in Act 34/2007. Therefore, Ext.P1 order of detention issued WP(CR) 9/08 -:12:- and executed against the husband of the petitioner and Ext.P3 order of confirmation are hereby quashed and the respondents are directed to release the detenu forthwith if he is not required in any other case and to the above extent, the writ petition is allowed. No order as to cost. P.R.RAMAN, JUDGE. V.K.MOHANAN, JUDGE. kvm/- WP(CR) 9/08 -:13:- V.K.MOHANAN, J. No.... Judgment/Order Dated: