SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Article Pause Article
judgment-img

2015 Supreme(Ker) 1452

IN THE HIGH COURT OF KERALA
K.T. SANKARAN, RAJA VIJAYARAGHAVAN V., JJ.
Kumar - Appellant
Versus
State of Kerala and others - Respondents
W.P. (Crl.) No. 355 of 2015
Decided On : 30-09-2015

Advocates Appeared:
For the Appellant : C. Rajendran and K.R. Ranjith
For the Respondents: Tom Jose Padinjarekkara, Additional Director General of Prosecution

Headnote:

Kerala Anti Social Activities (Prevention) Act 2007 - Section 3(1) - Detention order - Right of detenue - Held, detenu cannot be told that "at any rate you are under detention" and the court cannot examine whether there are illegalities in the whole procedure and total non application of mind. Non application of mind is evident from the records, which would vitiate the order of detention as well as the continued detention. Copy of document which was relied upon by the detaining authority was not supplied to the detenu which would also vitiate the order of detention - Detenue to be released - Petition allowed

JUDGMENT :

K.T. Sankaran, J.

1. The Writ Petition is filed by the father of Sarath @ Kunjumon, who was detained as per the order passed under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act. The order of detention is dated 28/05/2015 issued by the District Magistrate, Thiruvananthapuram. The order was executed on 05/06/2015 and the detenu was detained. The detenu challenges the order of detention as well as the continued detention. As per Ext. P1 order of detention, the detenu was classified as a known rowdy. It is stated in Ext. P1 that the detenu is involved in ten crimes registered in the years 2013, 2014 and 2015, nine crimes at Chirayinkeezhu Police Station and the last crime at Attingal Police Station. The crime registered at Attingal Police Station was registered suo motu by the police and therefore, it was excluded from the purview of consideration.

2. Ext. P1 order of detention dated 28/05/2015 refers to two reports dated 07/05/2015 and 25/05/2015 submitted by the District Police Chief. The contention of the petitioner is that the report dated 25/05/2015 was not served on the detenu. On verification of the original records, we could not find copy of the report dated 25/05/2015. Instead, we could find a report dated 23/05/2015 submitted by the Sub Inspector of Police, Chirayinkeezh Police Station to the District Police Chief, Thiruvananthapuram, in which reference to three crimes committed after the date of submission of the first report is made. The copy of this letter sent by the Sub Inspector of Police to the District Police Chief was supplied to the detenu. However, the report dated 25/05/2015 submitted by the District Police Chief to the District Magistrate and which is referred to in the first paragraph in the order of detention was not supplied to the detenu.

3. Another glaring illegality pointed out by the learned counsel for the petitioner that though Ext. P1 order of detention is dated 28/05/2015, Ext. P4 memo for executing the order of detention was issued by the District Collector and the District Magistrate on 26/05/2015. The date put on Ext. P4 order at the end of it is 26/06/2015. On noticing the difference in dates in the order of detention as well as in the memo for executing the order of detention (Ext. P4), we carefully perused the original files and we could notice still graver mistakes and illegalities, which are the following:

"(i) In the counter-affidavit of the second respondent (District Magistrate, Thiruvananthapuram), it is stated in paragraph 1 as follows:

"1. I am the District Collector and District Magistrate, Thiruvananthapuram, the second respondent in the above writ petition. The order was passed by me on 24/05/2015. I know the facts of the case as disclosed by the relevant files."

Ext. P1 order on the basis of which the detenu was arrested and detained is dated 28/05/2015. In paragraph 6 of the counter-affidavit of the second respondent, it is stated thus:

"6. On being satisfied that Sri. Sarath @ Kunjumon is a "known rowdy", as defined in Section 2(p)(iii) of KAA(P) Act, 2007 and that if he remains at large after release from earlier detentions, he would indulge in antisocial activities with regard to public peace and order which would directly or indirectly cause harm, danger or cause threat to public life and property among the general public of Thiruvananthapuram District, as reported by the District Police Chief, Thiruvananthapuram Rural, Detention Order No. CC56/S13/Camp/15 dated: 24/05/2015 was issued."

The contention is that on the basis of the subjective satisfaction arrived at, an order of detention dated 24/05/2015 was passed. But the order of detention which was served on the detenu and on the basis of which he was arrested and detained was as per Ext. P1 order dated 28/05/2015.

(ii). Though the detenu was arrested on the basis of the order of detention dated 28/05/2015, Ext. P4 "memo for executing order of detention" signed by the District Collector and District M








Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
whatsapp-icon Back to top