IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 WP(Crl.).No. 175 of 2008(S) --------------------------- PETITIONER: ------------ 1. KAKKI JACOB, AGED 80 YEARS, VALIYAVEETTIL VEEDU, M.M.MATHEW ROAD, PERUMPADAPPU, EDAKOCHI, ERNAKULAM DISTRICT. 2. DIANY, AGED 75, VALIYAVEETTIL VEEDU, M.M.MATHEW ROAD, PERUMPADAPPU, EDAKOCHI, ERNAKULAM DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENTS: ------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD, ERNAKULAM. 2. THE CITY POLICE COMMISSIONER, OFFICE OF THE CITY POLICE COMMISSIONER, KOCHI. 3. THE CIRCLE INSPECTOR OF POLICE, PALLURUTHY, ERNAKULAM DISTRICT. 4. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVT.SECRETARIAT, TRIVANDRUM. 5. THE SECRETARY TO HOME AFFAIRS, GOVT. OF KERALA, THIRUVANANTHAPURAM. 6. THE ADVISORY BOARD, OFFICE OF THE ADVISORY BOARD UNDER KAAPA, ELAMAKKARA, ERNAKULAM DISTRICT. BY SHRI K.K. RAVEENDRANATH, SPL.G.P. & ADDL.D.G.P. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 17/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX EXT.P1-TRUE COPY OF THE CERTIFICATE EVIDENCING THE MEMBERSHIP OF PARISH EXT.P2-TRUE COPY OF THE CERTIFICATE ISSUED BY CSS, PERUMPADAPPU EXT.P3-TRUE COPY OF THE MINUTES OF THE MEETING OF THE CONGRESS (I) PARTY EXT.P4-TRUE COPY OF THE PHOTOGRAPH EXT.P5-TRUE COPY OF THE ORDER OF DETENTION DATED 11.6.2007 EXT.P6-YTRUE COPY OF MEMO FOR EXECUTING ORDER OF DETENTION EXT.P7-TRUE COPY OF THE FINAL REPORT DATED 10.6.2007 EXT.P8-TRUE COPY OF THE FIR OF THE PALLURUTHY POLICE STATION EXT./P9-TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT DATED 13.2.2008 EXT.P10-TRUE COPY OF THE ORDER OF THE GOVT. OF KERALA DATED 18.2.2008 EXT.P11-TRUE COPY OF THE REPRESENTATION EXT.P12-TRUE COPY OF MEDICAL CERTIFICATE EXT.P13-TRUE COPY OF JUDGMENT IN WP (CRL.) 137/2008 EXT.P14-TRUE COPY OF ORDER OF THE GOVT. DATED 18.4.2008 EXT.P15-TRUE COPY OF THE REPRESENTATION DATED 6.5.2008 RESPONDENTS' EXTS: NIL P.S. TO JUDGE P.R.Raman & T.R. Ramachandran Nair, JJ. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(Crl.) No. 175 of 2008-S - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of June, 2008. JUDGMENT Raman, J. The petitioners are the parents of one Sajan. He is the alleged detenu who is detained in the Central Prison, Viyyur pursuant to the order of detention passed by the first respondent under the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act'). Subsequently, the Government approved the order of detention for a period of six months. The Advisory Board constituted under the Act confirmed the detention by its order dated 5.4.2008. The order of detention is challenged on various grounds. 2. In the course of the argument by learned counsel for the petitioners, he sought permission to raise an additional ground, viz. that the order approving the detention passed by the Government for a period of six months prior to the confirmation order by the Board constituted under the Act, is contrary to the provisions of the Scheme of the Act and also in violation of Article 22(4) of the Constitution of India. This being a legal question and since this question has been considered by this court in earlier WPCR 175/2008 -2- decisions, we permitted the learned counsel to raise such ground. Learned Special Govt. Pleader also fairly submitted that though this question is not raised, this being a legal question, he does not stand in the way of considering such issue. 3. In the reported decision in Anitha Bruse v. State of Kerala and others (ILR 2008 (2) Ker.408) the above question has been considered elaborately and it was held that a detention order cannot be passed for more than three months unless the same is confirmed by the Board constituted under the Act. In this case, the order approving the detention passed by the Government was admittedly prior to the order of confirmation by the Board constituted under the Act and admittedly the approval was granted for more than three months. It is also contrary to the scheme and also violative of Article 22(4) of the Constitution of India. In the above circumstances, it is not necessary to go into the other questions. We allow the writ petition and direct release of the detenue Shri Sajan, Valiyaveettil House, M.M. Mathew Road, Edakochi, forthwith if he is not required in any other case. ( P.R.Raman, Judge.) (T.R. Ramachandran Nair, Judge.)