IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(Crl.).No. 499 of 2010(S) ---------------------------------------------- PETITIONER(S): --------------------- SREEDEVI, W/O.RAJEEV, CHERUKADA VADAKKATHIL VEEDU, KOCHUNADA, KUREEPUZHA CHERRY, SAKTHIKULANGARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA RESPONDENT(S): ----------------------- 1. THE STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, KOLLAM-691001. 3. THE DISTRICT SUPERINTENDENT OF POLICE, KOLLAM-691001. 4. THE CIRCLE INSPECTOR OF POLICE, CHAVARA, KOLLAM-691583. 5. THE SUB INSPECTOR OF POLICE, SAKTHIKULANGARA POLICE STATION, KOLLAM-691581. 6. THE SUPERINTENDENT OF CENTRAL PRISON, THIRUVANANTHAPURAM-695001. DIRECTOR GENERAL OF PROSECUTION FOR R1 RO 6 SR. GOVERNMENT PLEADER SHRI P. RAVEENDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 08/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(CRL.).NO. 499 OF 2010 S PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER BEARING NO.M.9-37778/KAA(P)A/10 DATED 23/06/2010. EXT.P2 TRUE PHOTOCOPY OF THE GROUND FOR DETENTION DATED 23.6.10. EXT.P3 TRUE PHOTOCOPY OF THE REPORT OF THE 3RD RESPONDENT DATED 23/04/2010. EXT.P4 TRUE PHOTOCOPY OF THE DETAILED REPORT SUBMITTED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P5 TRUE PHOTO COPY OF THE SAID MEMO DATED 23.06.2010. EXT.P6 TRUE PHOTOCOPY OF THE JAIL ADMISSION AUTHORIZATION GIVEN TO THE 6TH RESPONDENT DATED 23.06.2010. EXT.P7 TRUE COPY OF THE FIR IN CRIME NO.407/2007 OF SAKTHIKULANGARA POLICE STATION. EXT.P8 TRUE PHOTOCOPY OF THE FI STATEMENT IN CRIME NO.407/2007 OF SAKTHIKULANGARA POLICE STATION. EXT.P9 TRUE PHTOCOPY OF THE FINAL REPORT IN CRIME NO.407/2007 OF SAKTHIKULANGARA POLICE STATION. EXT.P10 COPY OF THE FIR IN CRIME NO.193/2008 OF PATHANAMTHITTA POLICE STATION. EXT.P11 COPY OF THE FINAL REPORT IN CRIME NO.193/2008 OF PATHANAMTHITTA POLICE STATION. EXT.P12 COPY OF THE FIR IN CRIME NO.257/2008 OF SAKTHIKULANGARA POLICE STATION. EXT.P13 COPY OF THE FIS IN CRIME NO.257/2008 OF SAKTHIKULANGARA POLICE STATION. EXT.P14 COPY OF THE FINAL REPORT IN CRIME NO.257/2008 OF SAKTHIKULANGARA POLICE STATION. EXT.P15 COPY OF THE FIR IN CRIME NO.232/2009 OF SAKTHIKULANGARA POLICE STATION. EXT.P16 COPY OF THE FIS IN CRIME NO.232/2009 OF SAKTHIKULANGARA POLICE STATION. EXT.P17 COPY OF THE FINAL REPORT IN CRIME NO.232/2009 OF SAKTHIKULANGARA POLICE STATION. EXT.P18 TRUE COPY OF THE FIR IN CRIME 56/2010 OF SAKTHIKULANGARA. EXT.P19 TRUE COPY OF THE FIS IN CRIME NO.56/2010 OF SAKTHIKULANGARA POLICE STATION. W.P.(CRL).NO.499 OF 2010 S EXT.P20 TRUE COPY OF THE REMAND APPLICATION IN CRIME NO.56/2010 OF SAKTHIKULANGARA POLICE STATION. EXT.P21 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU DATED 08.12.2010. EXT.P22 TRUE COPY OF THE LAWYER NOTICE DATED 07.12.2010. EXT.P23 TRUE COPY OF THE ORDER DATED 05.10.2010. EXT.P24 TRUE COPY OF THE SAID ORDER DATED 25.11.2010. RESPONDENTS' EXHIBITS: EXT.R1(A) TRUE COPY OF LETTER NO:74052/SSA5/2010/HOME DATED 28.12.2010 ACKNOWLEDGED BY THE DETENU ON 29.12.2010. EXT.R2(A) TRUE COPY OF THE ORDER OF APPROVAL SERVEDAND ACKNOWLEDGED BY THE DETENU (ORDER DATED 5.10.10). EXT.R2(B) TRUE COPY OF THE CONFIRMATION ORDER ACKNOWLEDGED BY THE DETENU (ORDER DATED 25.11.10). //TRUE COPY// PS to Judge K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(CRL).NO. 499 OF 2010 S ------------------------------------------ Dated this the 8th February, 2011 JUDGMENT K.M. Joseph, J. Petitioner seeks a writ of Habeas Corpus commanding respondents 1 to 6 to produce the detenu before this Court, to quash Ext.P1 detention order and consequential orders pursuant to the same passed by the Government and to set the detenu at liberty. Ext.P1 is an order passed under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). Petitioner is the wife of the detenu. 2. We heard the learned counsel for the petitioner and the learned Senior Government Pleader. Learned counsel for the petitioner would address the following submissions before us: In the first place, he would submit that Ext.P1 order of detention is dated 23.06.2010. The order of detention was, WP(CRL).NO.499/2010 S 2 however, executed only on 22.09.2010. Therefore, he would contend that live-link has been lost. He would point out that the only contention raised by the Government to justify the delay is the change in residence. The further contention raised by him is that there is no approval under Section 3(3) of the Act within twelve days. According to him, Sundays are not public holidays within the meaning of Sub-section (3) of Section 3. He would also say that the arrest was at 6 AM on 22.9.2010 and the approval was granted beyond twelve days, at any rate. Thirdly, he would contend that Exts.P7 to P9 and P12 to P19 are the documents which are supplied to the detenu, but were not legible. Finally, he would contend that there is unexplained delay in the matter of disposal of the representation by the Government and there was no consideration also of the representation. 3. After hearing the learned counsel, we are of the view that the Writ Petition is to be allowed and it has to be held that the continued detention is not warranted for the reason that there is WP(CRL).NO.499/2010 S 3 unexplained delay in disposal of the representation. Hence, we are not going into the merits of the other contentions raised by the petitioner. Case of the petitioner is that the detenu gave the representation dated 8.12.2010, but it was disposed of by the Government only on 28.12.2010. There was delay of twenty days. In support of his contention that unexplained delay is fatal to continued detention, he relied on the Judgment of this Court in Sulaiman v. State of Kerala (2010 (3) KLT 790) and also the Judgment of the Apex Court in Rajammal v. State of T.N. And Another ((1999) 1 SCC 417). In the first of the cases, there was a delay of twentyone days and this Court took the view that the delay being unexplained, it resulted in the continued detention being unsustainable. In the decision of the Apex Court, there was a delay of five days. 4. In this case, at the time when the Writ Petition was filed, the representation had not been disposed of and the Writ Petition was filed on 15.12.2010. It is stated in Ground J that the detenu WP(CRL).NO.499/2010 S 4 had submitted representation dated 8.12.2010 and he did not get any reply so far and there was no consideration of the representation. In answer to Ground J, what is stated by the first respondent is as follows, inter alia: Government examined the matter with reference to the records and in proper and due application of mind and has found that the averments raised therein to revoke the detention was unfounded and devoid of merit. Therefore, the Government decided to reject the petition and the decision thus taken was communicated to the detenu. 5. Learned Senior Government Pleader does not dispute that the files disclose that the representation dated 10.12.2010 was received by the Government and it was placed before the Additional Chief Secretary on 14.12.2010 and it was disposed of on 27.12.2010 and the matter was communicated on 28.12.2010. In the circumstances of the case, we are of the view that there is delay which is not explained in the matter of disposal of the representation which renders the continued detention WP(CRL).NO.499/2010 S 5 insupportable. In the result, the Writ Petition is allowed and the continued detention of the detenu, namely Rajeev @ Kochunada Rajee is set aside. We direct that if the detention of the detenu is not required in connection with any other case, he shall be released forthwith. Registry shall communicate this Order to the Superintendent of Central Prison, Thiruvananthapuram for compliance. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. //True Copy// WP(CRL).NO.499/2010 S 6