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 6TH OCTOBER 2009 / 14TH ASWINA 1931 WP(Crl.).No. 356 of 2009(S) --------------------------- PETITIONER(S): --------------- SAROJINI, AGED 65 YEARS, W/O. LATE VELAYUDHAN, THODU HOUSE, EAST BLANGAD, CHAVAKKAD, THRISSUR. BY ADV. SRI.P.RAMACHANDRAN SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN SMT.LAKSHMI.N.KAIMAL RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF LAW, NEW DELHI. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DISTRICT COLLECTOR, COLLECTORATE, THRISSUR. 4. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, THRISSUR. 5. THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR. BY ADV.SHRI T.P.M.IBRAHIM KHAN FOR R1 BY ADDL.DIR.GENERAL.OF PROSECUTIONS SHRI K.K.RAVINDRANATH FOR R2-5 THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: “CR” R.BASANT & M.C.HARI RANI, JJ. -------------------------------------------------- W.P.(Crl.)No.356 OF 2009 S ----------------------------------------------------- DATED THIS THE 6th DAY OF OCTOBER, 2009 J U D G M E N T Basant, J. How is the period of five days under Section 7(2) of the Kerala Anti Social Activities (Prevention)Act (hereinafter referred to as the 'KAAPA') to be computed? Does the law oblige the Government to pass an order under Section 10(4) within the period of nine weeks stipulated under Section 10(1)? These questions are raised mainly in this Writ Petition. 2. The petitioner, mother of a detenu detained under Section 3 of the KAAPA has filed this petition under Article 226 of the Constitution of India to set aside detention of the detenu under Exhibit P1 order and to set him at liberty. 3. The alleged detenu Raju is allegedly involved in four crimes referred to in detail in Exhibit P1. Those crimes are W.P.(Crl.)No.356/09 -2- committed in the year 2005, 2006, 2006 and 2008. The 4th of those crimes is pending investigation, whereas in crimes 1 to 3 investigation is complete and final reports have already been filed. The 4th respondent submitted a proposal for invocation of the powers of detention under Section 3(1) to the 3rd respondent and it is accordingly that the 3rd respondent passed Exhibit P1 order of detention dated 1.7.2009. On the basis of the said order dated 1.7.2009, the detenu was arrested and detained on 2.7.2009. He continues under detention from that date. All other documents were furnished to the detenue on the date of detention, i.e., on 2.7.2009. But,the order granting bail and memo of release in one of the crimes were furnished only on 7.7.2009. Admittedly, the petitioner did not make any representation before the Government or the Advisory Board. The Advisory Board submitted its report dated 27.8.2009 to the Government and the Government thereupon on 5.9.2009 passed orders under Section 10(4) of the KAAPA confirming the detention for a period of six months from the date of detention. That order was served on the detenu on 6.9.2009 and he W.P.(Crl.)No.356/09 -3- continues in custody from that date. This Writ Petition was filed by the petitioner on 28.8.2009. 4. Before us, the learned counsel for the petitioner and the learned Additional Director General of Prosecutions have advanced their arguments. The learned counsel for the petitioner assails the impugned order on the following three grounds. (1) Inasmuch as one crucial document was served on the detenu only on 7.7.2009, though he was detained from 2.7.2009, there is crucial infraction of the mandatory stipulations in Section 7(2) of the KAAPA. (2) Inasmuch as the order under Section 10(4) has not been passed within nine weeks of the date of detention, there is vital infraction of the mandate under Section 10(4) read with Section 10(1) of the KAAPA. (3) The original order of detention having not been served on the detenu and a copy of such order served on the detenu having been approved for W.P.(Crl.)No.356/09 -4- issue by the Deputy Collector(General) who under the Statute is not authorised to issue such copies, there is breach of the mandate of Section 7(1) of the KAAPA. 5. Ground No.1: Under Section 7(2) of the KAAPA, copies of relevant documents shall be furnished to the detenu “as soon as possible, nevertheless, in any case within five days of detention”. The detention in this case was on 2.7.2009. All other documents were furnished earlier; but the last of those documents was furnished on 7.7.2009. Can the furnishing of the documents on 7.7.2009 be held to be within five days of detention? This is the short question to be considered. 6. We extract Section 7(2) of the KAAPA. It reads: “7(2). The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials-relating to his activities on the W.P.(Crl.)No.356/09 -5- basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention: Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security.” (emphasis supplied) 7. The language used in Section 7(2) is simple. Copies have to be furnished as soon as possible. At any rate, it has to be furnished within five days of detention. Five days have to be W.P.(Crl.)No.356/09 -6- counted “of detention”. Reasonably read, it means five days from “the date of detention”. If the copies are furnished on 3.7.2009, simple language commands that it must be reckoned as furnished within one day of detention. So extended furnishing of the document on 7.7.2009 must clearly be held to be within five days of detention. Reliance is sought to be placed on the decision reported in Haru Das v. State of West Bengal (AIR 1972 SC 1293). We are unable to agree that the said decision can in any way support the contention of the petitioner that furnishing the document on 7.7.2009 can be held to be not within five days of detention, i.e., 2.7.2009. That decision clearly suggests that the date of detention will have to be excluded in the computation of the period of five days. 8. The counsel strains to point out the different language used in Section 3(3). Of course, the language used in Section 3 (3) and 7(2) are not exactly identical. But such difference in language used in the two provisions cannot safely lead a reasonable person to conclude that the date of detention must be included while considering the period of five days under Section W.P.(Crl.)No.356/09 -7- 7(2) of the KAAPA. The challenge on the first ground therefore fails. 9. Ground No.2: For easy reference, we extract Section 10(1) and Section 10(4) of the KAAPA. “10. Procedure of Advisory Board and further action.- (1) The Advisory Board to which a reference is made under the above section shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government, or from the person concerned and if, in any particular case, it considers necessary so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the W.P.(Crl.)No.356/09 -8- same within nine weeks from the date of detention of the person concerned.” 10(4). In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned, the Government shall revoke the detention order and cause the person to be released forthwith”. (emphasis supplied) The learned counsel relies on the language of Section 10(1) which obliges the Advisory Board to submit its opinion “within nine weeks from the date of detention” of the detenu. Under Section 9 of the KAAPA reference has to be made by the Government to the Advisory Board within three weeks from the W.P.(Crl.)No.356/09 -9- date of detention and the Advisory Board has to submit its opinion within nine weeks from the date of detention. The scheme of Section 10 clearly reveals that only after getting the opinion of the Advisory Board, can the Government pass the order under Section 10(4) of the KAAPA. The scheme of Section 10(4) does of course clearly reveal that application of mind by the Government is necessary when the opinion is to the effect that there is sufficient cause for the detention. It is only after the event - submission of the opinion by the Advisory Board, that the Government can aspire to pass the considered order under Section 10(4). 10. Back to the facts, the detention was on 2.7.2009. The Advisory Board submitted its opinion dated 27.8.2009. The same was received by the Government on 28.8.2009. The Government passed the order under Section 10(4) on 5.9.2009. 11. The learned counsel contends that a conjoint reading of Section 10(1) and Section 10(4) of the KAAPA must lead this Court to the conclusion that the order under Section 10(4) must also be passed within nine weeks of the date of detention. From W.P.(Crl.)No.356/09 -10- the plain language of Section 10(1) and 10(4) or by the scheme of Section 10, this contention does not appear to us to be acceptable. Time limit is prescribed for submission of the opinion of the Advisory Board. No time limit is prescribed for passing the order confirming detention under Section 10(4) of the KAAPA. Of course, it does not say or imply that the Government can pass an order under Section 10(4) at such time when it pleases them. The right of a person to make a representation against his detention to the Government and the Advisory Board is well recognised under Article 22(5) of the Constitution of India and Section 7(2) of the KAAPA. The right to make a representation brings with it the obligation to consider the same as also the obligation to consider the same effectively, efficaciously and expeditiously. Even though no specific period is prescribed for passing an order under Section 10(4) confirming the order of detention, when the opinion shows that there is sufficient cause to continue the detention, it will inevitably have to be held that the detenu cannot be kept in suspended animation not knowing what order has been passed under Section 10(4) of the KAAPA. W.P.(Crl.)No.356/09 -11- If there be unreasonable and unexplained delay between the submission of the report by the Advisory Board and consequent order passed under Section 10(4), certainly the detenu will be entitled to take advantage of that unexplained and unjustifiable gap of time. Section 10(4) of the KAAPA further shows that when the opinion of the Advisory Board is that there is no sufficient cause for detention, the order must be passed “forthwith”. Having said so, in respect of that category of cases, it may not be irrelevant to note that such a stipulation has not been made in respect of the order of confirmation of detention to be passed under Section 10(4) when the opinion shows that there is sufficient cause for detention. At any rate, we agree that the order has to be passed expeditiously after getting the report of the Advisory Board, though no specific time limit is prescribed for passing such an order. 12. The learned counsel contends that a Division Bench of this Court in Anitha Bruse v. State of Kerala (2008(2) KHC 742 (DB) has already held that the order under Section 10(4) will also have to be passed within nine weeks, i.e., 63 days. The W.P.(Crl.)No.356/09 -12- learned counsel relies on the following sentence which appears in paragraph 14: “.... .... That means the final order of the Government on the basis of the Advisory Board will have to be issued within nine weeks or 63 days.” 13. According to us, Anitha Bruse cannot be held to lay down any such dictum. That would be a classic case of extracting a passage/observation of a Court out of context and trying to understand the same. In Anitha Bruse, the question raised in this case now never came up for consideration before the Division Bench. The question that came before that Bench was whether the specification of time in an order of detention under Section 3 of the KAAPA is justified or not. While discussing that question to assert that there would be no unreasonable delay in passing an order under Section 10(4) prescribing the period of detention, those observations were made in passing. It would be myopic for this Court to assume that such a dictum was laid down and the same binds this Court now. The question whether there can be a W.P.(Crl.)No.356/09 -13- gap of time between submission of the opinion of the Advisory Board and the consequent passing of an order under Section 10 (4) did not at all arise for consideration and was not considered in Anitha Bruse. 14. In this case there is no unreasonable delay in passing the order under Section 10(4). The detention was on 2.7.2009. The report dated 27.8.2009 was submitted to Government and was received by the Government on 28.8.2009 -well within the period of nine weeks (63 days). 29th was a working day. 30th was a public holiday. 31st was a working day. 1st to the 4th of September were public holidays. The order under Section 10(4) was passed on the next working day, i.e., 5.9.2009. It was served on the detenu on 6.9.2009. We are of the opinion that in having passed the order under Section 10(4) after due application of mind on the third working day after receipt of the opinion, there is no crucial inadequacy or impropriety warranting invalidation of the continued detention of the detenu. In these circumstances, we are of the opinion that the challenge raised on this ground cannot succeed. W.P.(Crl.)No.356/09 -14- 15. Ground No.3: It is contended that Exhibits P1 and P2 furnished to the detenu are not originals, but are only copies. The relevant statutory stipulation appears in Section 7(1) of the KAAPA, which we extract below: 7. Grounds of order of detention to be disclosed.- (1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. The language of Section 7(1) makes it very clear that what is to be given to the detenu is only copy of the order of detention and not the original. Furnishing of a copy is therefore perfectly in tune with the specific language of Section 7(1). No grievance can be made that not the original, but only a copy was furnished. Undaunted, the learned counsel contends that at any rate, the copy furnished is not duly certified or attested. Exhibits P1 and P2 are the order of detention and the grounds thereof which accompanied the order. In both, it is very clearly shown that the W.P.(Crl.)No.356/09 -15- original is signed by the 3rd respondent. The copies of Exhibits P1 and P2 issued to the detenu show that it was issued “By order - Deputy Collector(General)”. It is true that the statute does not specify the person who is authorised to attest the order of detention and the grounds of detention. There is no contention that there is any incongruity or disagreement between the original and the copy. In these circumstances, we take the view that the facts that the original has not been furnished or that the Deputy Collector (General) who by order had issued the true copy is not specifically authorised by the statute to issue such a copy are not in any way relevant and this contention cannot lead to invalidation of the order of detention. 16. In passing, the learned counsel contends that the 44th amendment of the Constitution amending Article 22 has not been brought into force under Section 1(2) of the Amendment Act by issue of a notification by the Central Government and this adversely affects the rights of the detenu. This question has been considered in detail in paragraphs 23 to 25 in the order of reference dated 9.9.2009 in W.P.(C)No.20606/09. Relying on the W.P.(Crl.)No.356/09 -16- observations of the Hon'ble Supreme Court in paragraphs 50 and 52 of A.K. Roy v. Union of India,[A.I.R.1982 S.C.710], it has already been held that this question cannot be agitated before Courts. We do not hence think it necessary to advert to this contention in any further detail. 16. No other contentions are raised. 17. This Writ Petition is, in these circumstances, dismissed. R.BASANT, JUDGE. M.C.HARI RANI, JUDGE. dsn