IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 WP(Crl.).No. 269 of 2010(S) --------------------------- PETITIONER(S): --------------- SHAFEENA C.H., AGED 23 YEARS, W/O.SHANAVAS, POROORKARA, EDAPPALLYCOTTA P.O., PANMANA VILLAGE, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.S.K.PREMRAJ SRI.C.S.MANU RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-1. 2. ADVISORY BOARD, KERALA ANTI SOCIAL ACTIVITIES (PREVENTION) ACT,2007, SREENIVAS, VIVEKANANDA NAGAR, PADAM ROAD, ELAMAKKARA P.O., ERNAKULAM, REPRESENTED BY ITS CHAIRMAN. 3. DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KOLLAM. 4. SUPERINTENDENT OF POLICE, KOLLAM DISTRICT. 5. SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM DISTRICT. SR. GOVERNM ENT PLEADER SRI.K.J. MOHAMMED ANZAR FOR R1-5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 02/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R. BASANT & M.L. JOSEPH FRANCIS, JJ. ------------------------------------------------- W.P.(Cri) No. 269 of 2010-S ------------------------------------------------- Dated this the 2nd day of September, 2010 JUDGMENT Basant,J. The petitioner has come to this Court with this petition for issue of a writ of habeas corpus to direct production of her husband 'Shanavas' (hereinafter referred to as `the detenu') who stands preventively detained as per Ext.P1 order dated 8/6/10 passed by the 3rd respondent under Sec.3 of the Kerala Anti- Social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA'). 2. The detenu was classified as a `known rowdy'. The order of detention was passed on 8/6/10. He was arrested on 23/6/10 in execution of the impugned order of detention. Approval under Sec.3(3) of the KAAPA has already been granted by the Government. Final order under Sec.10(4) of the KAAPA W.P.(Cri) No. 269 of 2010 -: 2 :- has not yet been passed, it is submitted. We have heard the learned counsel for the petitioner and the learned Government Pleader in detail. The learned counsel for the petitioner assails the impugned order on various grounds. But for the purpose of this case, it is sufficient and necessary for us to refer to the following grounds only. 3. The learned counsel for the petitioner contends that the impugned order of detention is bad for the reason that copy of the report of the 4th respondent to the 3rd respondent under Sec.3(1) of the KAAPA on the basis of which the impugned order of detention Ext.P1 has been passed has not been furnished to the detenu. (4) We have considered this contention in detail. In Ground-G, the following specific averment appears: “The copies of the reports submitted by the Superintendent of Police have not been admittedly furnished to the detenu.” The impugned order Ext.P1 shows that the same is passed by the detailing authority - the 3rd respondent, on the basis of the report under Sec.3(1) of the KAAPA dated 28/5/10 No.GL/50/KAAPA/2010Q submitted by the Superintendent of Police. It is by now well settled that Art.22(5) of the Constitution and Sec.7(2) of the KAAPA oblige the detaining W.P.(Cri) No. 269 of 2010 -: 3 :- authority to furnish to the detenu all relevant documents on the basis of which the order of detention is passed. If such copies were not furnished, the right to make a representation under Art.22(5) of the Constitution and Sec.7(2) of the KAAPA would be frustrated. 5. The question hence is whether copy of Sec.3(1) report submitted by the 4th respondent to the 3rd respondent has been furnished to the detenu. Even though under Ground-F specific contention to the above effect was raised, it is crucial to note that either in the counter affidavit of the 3rd respondent or in the counter affidavit of the 4th respondent no specific assertion is made that the copy of the said report has been furnished to the detenu. We must assume that such absence of denial is informed one and not an accidental omission. In the wake of the very specific plea raised in Ground-G it was incumbent on respondents 3 and 4, if that is their case, to assert that copy of Sec.3(1) report submitted by the 4th respondent to the 3rd had actually been furnished. In pleadings, we note (and we do reckon the same to be significant) there is no assertion that copy of the said report has been furnished to the detenu. 6. The learned Government Pleader valiantly contends that the acknowledgment taken from the detenu on Ext.P1 clearly W.P.(Cri) No. 269 of 2010 -: 4 :- shows that copy of such a report had been furnished to the detenu. We have through the said acknowledgment. There is a vague reference to a final report of the District Superintendent of Police. But, the file very clearly shows that in addition to such acknowledgment taken on the order of detention, specific acknowledgment was taken on all the pages of the copies actually furnished. Significantly, no acknowledgment has been taken on the copy of the report under Sec.3(1) submitted by the 4th respondent to the 3rd respondent. No index has been prepared and acknowledgment has not been taken on the index also. 7. The petitioner has a definite case that he was furnished not with a copy of the report of the 4th respondent to the 3rd respondent; but only a copy of the report submitted by the Circle Inspector of Police, Chavara, to the 4th respondent. That contention prima facie appears to be correct inasmuch acknowledgment is seen available in the file on a copy of such report submitted by the Circle Inspector of Police to the 4th respondent. This clearly indicates the truth of the assertion of the petitioner on behalf of the detenu that what was furnished to him was not a copy of Sec.3(1) report submitted by the 4th respondent to the 3rd respondent; but only a report submitted by W.P.(Cri) No. 269 of 2010 -: 5 :- the Circle Inspector of Police to the 4th respondent. 8. It is trite that the report under Sec.3(1) is a very important and significant document. As per Sec.3(1) of the KAAPA information must be furnished by the Superintendent of Police to the District Magistrate and the satisfactions of the District Magistrate must be on the basis of such an information/report furnished by the Superintendent of Police to the District Magistrate. 9. All the files concerned have been placed before us. The learned Government Pleader fairly accepts that he is unable to point out anything specific to satisfy the Court that copy of Sec.3(1) report had actually be furnished to the detenu. The learned Government Pleader only relies on the endorsement made on Ext.P1. 10. Inasmuch as copy of the very important and significant document viz., Sec.3(1) report submitted by the 4th respondent to the 3rd respondent, has not been furnished to the detenu, we must hold that his valuable rights under Art.22(5) of the Constitution and also Sec.7(2) of the KAAPA have been violated and infringed. Consequently, the petitioner is entitled to succeed and the order of detention passed against the detenu is liable to be quashed. W.P.(Cri) No. 269 of 2010 -: 6 :- 11. Various other Grounds have been raised; but in the light of the above crucial ground, we are of opinion that it is not necessary to go into the other grounds raised. 12. In the result: (a) This writ petition is allowed. (b) The impugned order of detention Ext.P1 and the consequent detention of the detenu is set aside for the reason that copy of Sec.3(1) report submitted by the 4th respondent to the 3rd respondent has not been furnished to the detenu. (c) The detenu shall forthwith be released from custody if his continued detention is not necessary in connection with any other case. (d) The Registry shall forthwith communicate this direction to the Superintendent of Prison where the detenu is kept under detention. R. BASANT (Judge) M.L. JOSEPH FRANCIS (Judge) Nan/