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2018 Supreme(Ker) 762
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.VINOD CHANDRAN, MARY JOSEPH, JJ.
Thankam W/o. Babu - Petitioners
Versus
State of Kerala & Ors. - Respondents
WP(Crl.).No. 251 of 2018
Decided On : 14-08-2018
For the Petitioners: Adv. Sri. O.V. Maniprasad, Sri. Jose Antony, Sri. S.Shiv Shankar.
For the Respondents: Adv. Addl. Director General Of Prosecution, Sri. Suresh Babu Thomas, Adv. Government Pleader Sri. K.A. Anas.
Headnote:The Kerala Anti-Social Activities (Prevention) Act, 2007- Section 7(2);; The Constitution of India -Article 22 (5)
Question arised:
Against the non-consideration of the representation made by the detenu to the Advisory Board on 11.04.2018 and the representation nil dated made by his mother to the Government.
Facts of the case:
Pursuant to an order of detention No.S13-3028/2018 passed by the District Collector and District Magistrate, Thiruvananthapuram, the 2nd respondent on 26.02.2018, under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007, with effect from 01.03.2018-The detenu is undergoing detention in the Central Prison, Viyyur- At the time when the detenu was taken into custody, in compliance of Ext.P1 order of detention, he has been served with some records in connection with the detention - Aggrieved by the passing of Ext.P1 detention order, the writ petitioner who is none other than the mother of the detenu has filed writ of Habeas corpus seeking release of her son from detention.
Reasons for the decision:
•
• without being satisfied with the conditions for categorising a person as a 'known goonda' or 'known rowdy' and without the conditions as aforesaid being satisfied, a detention order, if executed, would be illegal.
• If a representation is filed only before the Advisory Board, then on the detention order being confirmed and re-transmitted to the Government, the Government has an option either to confirm the detention order or to modify or even release the detenue, which can only be exercised on a proper consideration of the representation.
• KAAPA does not permit any representation by a near friend or a close relative, as in this case the mother, the Government could have necessarily exercised their jurisdiction under Section 13 if they are satisfied that there should be a revocation or modification of the order on the basis of the representation by any person other than the detenue.
Decision of the case:
The representation filed before the Advisory Board ought to have been considered by the Government -The detenu shall be released forthwith if he is not required or detained in connection with any other crime-This shall not preclude the Government from proceeding afresh under the KAAPA.
Result: Writ Petition (Criminal) is allowed
MARY JOSEPH, J.
1. This writ petition is filed by one Mrs.Thankam under Article 226 of the Constitution of India seeking the following reliefs :
“i. A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenu Dini Babu, S/o. Thankam, Kalluvettamkuzhi Veedu, Kannammoola, Koyikkal Lane, Medical College P.O., Thiruvananthapuram District, PIN:695 011 before this Hon'ble Court and to set him at his liberty forthwith.
ii. Declare that Ext.P1 detention order and the detention pursuant to the same is illegal and vitiated.
iii. Such other orders as are deemed fit and proper in the circumstances of the case.”
2. The writ petitioner is a resident of Thiruvananthapuram District. She is aggrieved by the illegal detention of her son Dini Babu(referred to hereinafter as the detenu'). Pursuant to an order of detention No.S13-3028/2018 passed by the District Collector and District Magistrate, Thiruvananthapuram, the 2nd respondent herein on 26.02.2018, under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act' for short), with effect from 01.03.2018. The copy of the said order is appended to this petition as Ext.P1. The contention of the writ petitioner was that the detenu was taken into custody pursuant to Ext.P1 order by the Sub Inspector of Police, Pettah Police Station, Thiruvananthapuram, the 5th respondent herein on 01.03.2018 from the Central Prison, Poojapura, Thiruvananthapuram, wherein he was in judicial custody. He was admitted in the Central Prison, Poojapura on the day itself and later on was transferred to Central Prison, Viyyur. At present, the detenu is undergoing detention in the Central Prison, Viyyur. At the time when the detenu was taken into custody, in compliance of Ext.P1 order of detention, he has been served with some records in connection with the detention and the copy of the grounds of detention in Malayalam, the true copy of which is appended to this petition as Ext.P2. In Ext.P1, the detaining authority has stated that the order was passed based on a report dated 21.01.2018 submitted before it by the 4th respondent, true copy of which is appended to this petition as Ext.P3. As revealed from Ext.P1, further reports had been called for from the 4th respondent, copies of which, dated 29.01.2018 and 17.02.2018 respectively have been appended to this petition as Exts.P4 and P5.
3. Aggrieved by the passing of Ext.P1 detention order, the writ petitioner who is none other than the mother of the detenu has approached this Court seeking release of her son from detention, which according to her is illegal and vitiated for procedural flaws and to set him at liberty.
4. Sri. O.V. Maniprasad, the learned counsel advanced arguments on behalf of the writ petitioner based on the following grounds:
i. The detaining authority passed Ext.P1 order without applying its mind on vital and relevant materials, available to it. The detenu was arrested in connection with Crime No.166/2018 of Medical College Police Station, Thiruvananthapuram and was in judicial custody. The Bail Application moved by him in the crime was rejected by the Additional Chief Judicial Magistrate, Thiruvananthapuram. Though these facts have been made known to the detaining authority at the time of passing of Ext.P1 order, it failed to advert to those by applying its mind. The Additional Chief Judicial Magistrate in the order passed in bail application in crime No.166/18 had stated, chance is there for the detenu to repeat the offence, the true copy of which order is appended to this petition as Ext.P6. It is clear from Ext.P6 order that bail was rejected to the detenu by the Additional Chief Judicial Magistrate, to avoid chances of the detenu to be involved in crimes in future. Ext.P6 order having not been produced before the detaining authority, it had no opportunity to be convinced in mind on its basis that there was no chance f
