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2018 Supreme(Ker) 63

IN THE HIGH COURT OF KERALA
P.R. RAMACHANDRA MENON, DEVAN RAMACHANDRAN, JJ.
Vishnuja - Petitioner
Versus
State of Kerala & Others - Respondents
WP(Crl.). No. 358 of 2017
Decided On : 11-01-2018

Advocates Appeared:
For the Petitioner:Shajin S. Hameed, Advocate.
For the Respondents: K.A. Anas, Government Pleader.

Headnote:Anti Social Activities (Prevention) Act 2007 (Kerala), S. 10(4) & 12 - Government is vested with the uncontrollable authority as held by the law to impose and to enforce detention orders as which is violative of section 12 of the act to extent the time to the detentu as the government cannot interpret and altered the sections and provisions in section 10(4).

JUDGMENT :

Devan Ramachandran, J.

1. The wife of Shri Aneesh, who has been sanctioned to be detained preventively pursuant to an order passed under the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'Act' for short) has filed this writ petition, challenging the order under which her husband was placed under detention, a copy of which has been placed on record as Ext.P4. The petitioner's case, as we can see from the pleadings and submissions made at the Bar, is that the order of detention and the subsequent orders ratifying such action by the competent Authorities are illegal and unlawful on account of infraction of imperative statutory prescriptions and also because it has been issued without proper application of mind .

2. We have heard the learned counsel for the petitioner Shri Shajin S. Hameed and the learned public prosecutor appearing on behalf of the official respondents.

3. We have examined Ext.P4 order impugned in this writ petition, which is the order issued by the District Magistrate ordering detention of Shri Aneesh under the prescriptions of Section 3 of the Act. On an examination of the said order, it would show that nine separate instances of criminal activities are detailed therein against Shri Aneesh and that his detention was requested for by the District Police Chief (Rural), Thiruvananthapuram.

4. The order, as we said above, refers to 9 different antisocial/ prejudicial acts, wherein Shri Aneesh has been recorded to be an accused in very grievous offences, including murder, attempt to murder, extortion, assault and such other. It is ineluctable, going by the contents of Ext.P4, that the provisions of Sec.2(j) and 2(p) of the Act are attracted against the petitioner's husband and that he, therefore, would be deserving of the definition of 'Known Rowdy'; as has been already ordered by the competent Authorities. This is because, as per the provisions of Section 2(p), a person can be declared to be a known rowdy, if he is made guilty of one offence, which falls under sub-section (i) thereof or if found guilty of two offences under sub-section (ii) or if he is arrayed as an accused after a proper investigation in three instances of infraction under subsection (iii) of the said section. There is no doubt that Shri Aneesh would fall in one of these categories and, therefore, that his inclusion in the list of known rowdy cannot be found at fault and in any event, the same is not under challenge herein. The question, therefore, is whether the proceeding that led to his detention through Ext.P4 would qualify scrutiny of law going by the specific statutory mandate.

5. The petitioner specifically contends in the writ petition that the order of detention was passed only on 02.05.2017, even though the allegation against her husband is that the last prejudicial activity in which he was involved, took place on 28.08.2016, the said order is vitiated in law as it has no live link to the last prejudicial activity and, therefore, that it does not satisfy the immediate and pressing requirement of ordering his preventive detention.

6. The petitioner further asserts that the order of detention is bad because her representation, a copy of which has been produced as Ext.P7, was not properly considered within the time permissible in law and finally that certain very relevant and pertinent documents had not been given to her husband at the time when the detention order was executed.

7. The petitioner also assails the detention on the ground that certain relevant documents were not given to the petitioner's husband at the time when he was taken into custody and according to her, this omission would vitiate the entire proceedings itself.

8. Apart from the above, the petitioner, as we see from the pleadings, also has a very specific contention that Ext.P4 order has been issued without proper application of mind and that the period of detention imposed therein is contrary to the specific statutory and applic






























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