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2013 Supreme(Ker) 223

IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.T. SANKARAN M.L. JOSEPH FRANCIS, JJ.
RAJESH BABU @ UNNI, S/O.RAJENDRA BABU - PETITIONER
VERSUS
THE STATE OF KERALA
THE DISTRICT MAGISTRATE
THE CITY POLICE COMMISSIONER
THE ASSISTANT POLICE COMMISSIONER
THE POLICE CIRCLE INSPECTOR
THE CIRCLE INSPECTOR OF POLICE
THE SUB INSPECTOR OF POLICE
THE SUB INSPECTOR OF POLICE - RESPONDENTS
WP(C).No. 29820 of 2012 (B)
Decided On : 3-04-2013

Advocates:
Advocate Appeared:
SRI.C.RAJENDRAN
R2, R5 BY DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI

Headnote:Kerala Anti-Social Activities (Prevention) Act, 2007, Section 2(o)(ii) Kerala Proviso (i) and (iii) - Protection of River Banks and Regulation of Removal of Sand Act, 2001 , Sections 20 and 21 - Kerala Protection of River Banks and Regulation of Removal of Sand Rules, 2002 , Rule 27 and 28 , Constitution of India, Article 226 - Seizure of vehicle includes the seizure of sand loaded in the vehicle also -Removal of sand from river is illegal and the person who collects the sand will be also punishable.

JUDGMENT

K.T.Sankaran, J.

The present Writ Petition is the third Writ Petition filed by the petitioner even before he was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'KAAPA'). The petitioner filed W.P.(C) No.6778 of 2012 for a declaration that he cannot be treated as a "known depredator" on the basis of the cases registered against him by the police and for the issue of a writ of mandamus, direction or order directing the District Collector, Kollam not to pass any detention order against the petitioner. The said Writ Petition was disposed of by Ext.P16 judgment dated 4.4.2012. The Division Bench held that the reliefs sought for by the petitioner could not be granted. However, the Division Bench observed that the detaining authority would apply its mind to the facts and circumstances pointed out by the petitioner including revocation of the order of detention issued earlier and subsequent developments, before passing any order of detention.

2. Earlier, as per the order dated 26.3.2011 issued under Section 3 of KAAPA, the petitioner was detained. However, the Advisory Board opined that there was no sufficient cause for the detention of the petitioner. Accordingly, the Government issued Ext.P10 order of revocation dated 3.6.2011. Thereafter, it was proposed to issue another order of detention against the petitioner and at that juncture, the petitioner filed W.P.(C) No.6778 of 2012 referred to above.

3. After the disposal of W.P.(C) No.6778 of 2012 and before issuing another order of detention, the petitioner filed W.P.(C) No.10487 of 2012 for the following reliefs:

"(i) Issue a writ of mandamus, direction or order directing respondents 5 to 8 not to arrest the petitioner on the basis of any detention order passed by 4th respondent under the provisions of Kerala Anti Social Activities (Prevention) Act, 2007.


(ii) Call for the records pertaining to the last detention order passed by the 4th respondent against the petitioner and quash the same.

(iii) Declare that petitioner cannot be treated as a 'known goonda' or 'known rowdy' as defined in Kerala Anti Social Activities (Prevention) Act, 2007 on the basis of all or any of the cases so far registered against the petitioner by the police.

(iv) to grant any other appropriate relief considering the nature and circumstances of the case."

4. W.P.(C) No.10487 of 2012 was dismissed as per Ext.P18 judgment dated 6.6.2012 holding that the petitioner did not make out sufficient grounds for challenging the order of detention at the pre-execution stage as held in Additional Secretary to the Government of India and others v. Alka Subhash Gadia and another (1992 Supp. (1) SCC 496) and Union of India and others v. Atam Parkash and another ((2009) 1 SCC 585). Ext.P18 judgment was challenged by the petitioner before the Honourable Supreme Court in S.L.P.No.22440 of 2012, but the Special Leave Petition was dismissed as per Ext.P20 order dated 17.7.2012.

5. The order of detention has not been executed so far. The petitioner filed the present Writ Petition to quash Ext.P1 order of detention dated 16.4.2012 and for the issue of a writ of mandamus commanding respondents 3 to 8 not to arrest and detain the petitioner in prison pursuant to Ext.P1 order of detention. The petitioner has also sought for a declaration that he is not liable to be classified as 'known goonda' and detained under KAAPA. Though the petitioner sought for a declaration that the period of seven years fixed in clauses (o) and (p) of Section 2 of KAAPA (for taking into account acts done during the said period) is ultra vires the Constitution, that contention was not pressed by the petitioner at this stage.

6. The petitioner states that he obtained copies of the order of detention and the grounds of detention on an application made under the Right to Information Act. The learned counsel submitted that there is proof to show that sufficient charges were paid for getting the copies and probab



















































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