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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, SOPHY THOMAS, JJ.
Jasheela T.M, W/o Abbas – Appellant
Versus
State Of Kerala – Respondent
WP(Crl.) No.1042 of 2022
Decided on : 06-12-2022
Kerala Anti-Social Activities (Prevention) Act, 2007 – Section 3(i), 2(a), (p)(iii), (t), 3(iii), 9, 10(4), (1), 15(1), (2) – Constitution of India, 1950 - Articles 21 and 22 - Habeas Corpus - Order to Detain Detenu - Seeking for issuance of writs of Habeas Corpus and certiorari, in regard to challenge against order to preventively detain detenu – Government has discretionary power under Sec.13(1) of Act to revoke or modify detention order at any time and that, in a given case - Para 18.
Finding of the Court :
It is only in public interest, that Government gets sufficient time to examine full factual details, to decide as to whether or not detention order should be approved, etc., and for that, Legislature has made a mandatory provision that a copy of the detention order and relevant document should be forthwith communicated by the authority to Government - In instant case, there is no dispute that Ext.P-2 detention order has been passed, whereas a copy of Ext.P-2 detention order and copy of said detention order and connected documents were communicated by 4th respondent to 1st respondent, a copy of which has been made available by learned Prosecutor - In Anupama's case supra instead of forthwith communicating detention order and relevant records, the detaining authority had communicated same only after four days - Time taken is four days, which would vitiate decision making process - Hence, petitioner is entitled to succeed on this ground - It is ordered that impugned Ext.P-2 detention order issued by 4th respondent as confirmed - Consequently, it is ordered that respondents herein, more particularly, 6th respondent shall forthwith release detenu involved in this case from detention and set him at liberty.
Result: W.P(Crl.) disposed of.
JUDGMENT :
Alexander Thomas, J.
The prayers in the aforecaptioned Writ Petition (Crl.), seeking for issuance of writs of Habeas Corpus and certiorari, in regard to the challenge against the order to preventively detain the detenu herein, in terms of Sec.3(i) Kerala Anti-Social Activities (Prevention) Act, 2007 [hereinafter referred as 'KAAPA' for short] are as follows :
ii. To declare that the Exhibit P-10 Order bearing G.P.(Rt) No.2922/2022/HOME dated 21.10.2022 issued by Government of Kerala is unconstitutional, illegal and violative of Articles 21 and 22 of the Constitution;
iii. To issue appropriate writ order or direction quashing the Exhibit P-10 Order bearing G.P.(Rt) No.2922/2022/HOME dated 21.10.2022 issued by Government of Kerala'
iv. To issue appropriate writ order or direction quashing the Exhibit P-2 Order of Detention bearing No.DCKKD/5207/2022-S2 dated 27.06.2022 passed by District Collector/District Magistrate, Kozhikode, Respondent No.4;
v. To direct the concerned authorities to release the detenue 'Bushar Jamhar' and set him at liberty forthwith.
vi. Grant such other direction or order, deemed appropriate by this Hon'ble Court in the facts and circumstances of the case.”
2. Heard Sri.Mathew A.Kuzhalnadan, learned Advocate instructed by Smt.Sradhaxna Mudrika, learned counsel appearing for the petitioner and Sri.K.A.Anas, learned Public Prosecutor appearing for the respondents.
3. The petitioner herein is the mother of the detenu involved in this case (Bushar Jamhar, aged 29 years, S/o Abbas), who has been ordered to be detained in terms of Ext.P-2 order dated 27.06.2022, issued by the 4th respondent (District Collector/District Magistrate, Kozhikode), whereby it has been ordered that, in view of the aspects mentioned therein, the 4th respondent is satisfied that the detention of the detenu under Sec.3(i) of the KAAPA is necessary, to prevent him from committing further prejudicial anti-social activities, as understood in Sec.2 (a) of the KAAPA.
4. The brief facts necessary for the disposal of this case are as follows :
The District Police Chief concerned, as the sponsoring authority, has submitted a report dated 24.04.2022, recommending to the 4th respondent-District Magistrate, who is the authorized detaining authority, that, in view of the factual details given therein, it is a fit case to enable the 4th respondent to invoke the powers under Sec.3(i) of the KAAPA, in order to issue orders to preventively detain the detenu, so as to prevent him from committing further prejudicial activities. 11 crimes, in which the detenu has been involved as an accused, have been stated in the said report of the sponsoring authority. Seven crimes out of the said 11 cases have been reckoned by the 4th respondent and he has issued Ext.P-2 detention order dated 27.06.2022, ordering that the detenu is to be detained under Sec.3(i) of the Act, etc. The last prejudicial activity, said to be committed by the detenu in this case, is on 07.03.2022. The detenu was arrested and remanded to judicial custody in that case on 14.04.2022 and later, he was released on bail on 07.05.2022. Ext.P-2 detention order was executed by the arrest of the detenu on 29.06.2022. Proposal was sent by the 4th respondent, for the approval of the Government on 01.07.2022. The Government has issued order dated 12.07.2022, approving Ext.P-2 detention order. Thereafter, the Government has referred the matter for the opinion of the Advisory Board on 15.07.2022. The Advisory Board has given its opinion in the matter on 26.08.2022. The Government has thereafter issued Ext.P-10 G.O (Rt.) No.2922/2022/Home dated 21.10.2022, confirming Ext.P-2 detention order. The details of the seven crimes, reckoned by the 4th respondent (Detaining Authority), in the issuance of Ext.P-2 detention order has b
Sec.3(3) mandates that Government shall take a decision on approval of detention order, within 12 days from date of detention of detenu, after excluding public holidays.
The court confirmed that under amended KAAPA provisions, the detention of individuals for a year is permissible upon engaging in further anti-social activities post-release.
The power to fix the period of preventive detention under the KAAPA is exclusively vested in the Government after receiving the Advisory Board's report, and any initial stipulation of a detention per....
The power to fix the period of preventive detention under the Kerala Anti-Social Activities (Prevention) Act, 2007, is exclusively vested in the Government after the Advisory Board's recommendation, ....
It is well settled that an order of detention can be validly passed against a person, who is already in custody, subject to condition that detaining authority must necessarily be aware of fact that d....
There was a delay of five days in sending detention order to Government, which was not mentioned or explained in final order of State Government.
The court established that strict compliance with procedural requirements in preventive detention laws is essential to protect individual liberties, and any failure to do so renders the detention ord....
detention order will not in any manner even remotely show that the detaining authority, after consideration of the said crucial aspect has found that there are compelling reasons justifying the preve....
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