The maximum period of one year for detention is discretionary and non-application of mind by the Government and detaining authority would vitiate the detention.

JUDGMENT :

A. MUHAMED MUSTAQUE, J.

1. This is the third detention order. The detenu is in judicial custody since 16.02.2023. The detention order was passed on 05.04.2023 and the detention is for one year.

2. The learned counsel for the petitioner placed reliance on Section 10(4) as also Section 12 of the Kerala Anti-Social Activities (Prevention) Act, 2007. The said provisions read thus:

“Section 10(4) - In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.”

(Emphasis supplied)

Section 12 - Maximum period of detention - In pursuance of the first detention order made against any person under this Act and confirmed under Section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

3. Heard the learned counsel for the petitioner.

4. A combined reading of the above provisions makes law abundantly clear that maximum period of one year is the discretion of the Government while confirming the order, as well as of the detaining authority while passing the detention order. It is submitted that it is not imperative under law that one should be detained for one year based on subsequent detention order.

5. The learned counsel further argued that non-application of mind by the Government as well as the detaining authority would vitiate the detention.

6. There are two parts in a detention order. One is related to the reasons justifying the detention order. The second part of the detention order is related to the period of detention. If the reasons for passing detention order can be legally sustained, the Court should not set aside the detention order mainly for the reason that there was non-application of mind in regard to imposing maximum period of detention order. The question is whether the court should interfere when there is non-application of mind as to the maximum period of detention order. This court finds that there was non-application of mind in regard to imposing maximum period of detention order. This is a fit case that ought to have been remitted for reconsideration by the authorities concerned. However, taking note of the fact that the detenu is already in judicial custody since 16.02.2023 onwards, this Court is refraining from remitting it back.

7. We also take note of the fact that detention authority, as well as the Government has not adverted to the fact that he was in judicial custody since 16.02.2023 and if that be the case, we are of the view that the operation of the impugned order is confined till today. Accordingly, the detenu is set at liberty, if he is not otherwise required under the law.