The subjective satisfaction of the authority concerned is crucial in deciding whether to resort to Section 15 or pass a detention order under Section 3(1) of the KAAPA.

K.T. Sankaran, J.

1. The question of law involved in this Writ Petition is whether an order of detention under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the KAAPA) can be issued without recourse to passing an order under Section 15 of the KAAPA.

2. Anwar, the son of the petitioner, was ordered to be detained as per the order issued by the second respondent under Section 3(1) of the KAAPA. Anwar was arrested on 15.9.2013 in execution of the order of detention. The procedural formalities were completed regarding approval by the Government under Section 3(3) of the KAAPA. The Advisory Board opined that there is sufficient cause for the detention of Anwar. The Government confirmed the order of detention as provided under sub-section (4) of Section 10 of the KAAPA. In this Writ Petition, the order of detention is under challenge. The learned counsel for the petitioner raised three points for consideration.

(i) Before passing an order of detention under Section 3(1) of the KAAPA, the second respondent should have resorted to the proceedings under Section 15(1) of the KAAPA.

(ii) The grounds of detention and copies of the relevant documents were not supplied within 5 days of detention as provided under sub-section (2) of Section 7 of the KAAPA.

(iii) Proceedings under Section 107 of the Code of Criminal Procedure were initiated against the detenu and therefore, there was no justification for passing an order of detention under Section 3(1) of the KAAPA.

3. The order of detention was issued against the detenu considering him as a known rowdy as defined under Section 2(p)(iii) of the KAAPA. The detenu was involved in nine criminal cases. It is submitted that at the time when the Advisory Board considered the matter, the detenu was acquitted in two cases and even thereafter he was acquitted in another case. The detaining authority was satisfied that with a view to prevent the detenu from committing any anti-social activity within the State of Kerala in any manner, it was necessary to make an order directing him to be detained. The subjective satisfaction was arrived at on the basis of the materials available before the second respondent. There is no dispute that the cases in which the detenu is involved would be sufficient to treat him as a known rowdy under the KAAPA.

4. Under Section 3(1) of the KAAPA, the Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any known goonda or known rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. When an order is made under Section 3(1) by the authorised officer, he is bound to report the matter to the Government and the Director General of Police, Kerala, as provided in sub-section (3) of KAAPA forthwith. The order has to be approved by the Government or by the Secretary, Home Department, if authorised, within twelve days, excluding public holidays, from the date of detention. Within three weeks from the date of detention of a person, the Government has to place the matter before the Advisory Board. The Advisory Board shall submit, within nine weeks, a report containing its opinion as to whether or not there is sufficient cause for the detention of the person concerned. If the Advisory Board is of the opinion that there is sufficient cause for the detention of the person, the Government may confirm the detention order. If the report of the Advisory Board is that there is no sufficient cause for the detention of the person, the Government shall revoke the detention order and release the person forthwith. A detention order under Section 3(1) may at any time be revoked or modified by the Government under Section 13 of the KAAPA.

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