IMPORTANT POINT
A properly constituted Advisory Board, including a Chairman, is essential for lawful preventive detention; absence of the Chairman renders the detention illegal.

JUDGMENT :

(Raja Vijayaraghavan, J.) :

Munavar Fairos, the husband of the petitioner, was detained by Ext.P1 order dated 03.07.2024 passed by the 2nd respondent under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP’ Act for brevity). The detention order was executed on 09.07.2024 and he has been undergoing detention from 01.06.2024.

2. This Writ Petition is filed challenging Ext.P1 order and for issuance of a writ of habeas corpus to produce the body of the detenu and to set him at liberty.

3. Though various contentions have been raised in the Writ Petition to assail the order of detention, when the matter is taken up today, Sri. M.H Hanis, the learned counsel for the petitioner, submitted that further detention of the detenu, pursuant to Ext.P1 detention order, cannot be sustained under the law for the reason that the further detention of the detenu has been approved by the Advisory Board which cannot be said to have been duly constituted in accordance with the law. It is pointed out by the learned counsel that the Advisory Board constituted under Section 8 shall consist of a Chairman, who is or had been a Judge, and two other members, who are qualified under the Constitution of India to be appointed as a Judge of the High Court. In the case on hand, a reference was made by the Government to the Advisory Board and as the office of the Chairman was lying vacant, the opinion was rendered by two members without the junction of the Chairman. The said opinion was accepted by the Government and the detention order was confirmed. It is submitted by the learned counsel that the confirmation order passed by the Government relying on the opinion submitted by an Advisory Board, which has not been constituted in accordance with the law, is a clear violation of the constitutional mandate and the statutory provisions. According to the learned counsel, the rights guaranteed to the detenu under Articles 21 and 22(5) of the Constitution of India have been infringed and on that sole ground, the detention order is liable to be interfered with.

4. Sri.K.A.Anas, the learned Public Prosecutor, would refer to the provisions, and it was argued that the members of the Advisory Board are qualified to be appointed as Judges of the High Court, and in that view of the matter, no prejudice has been caused.

5. We have considered the submissions advanced and have gone through the records.

6. The Act 34 of 2007 is a law providing for preventive detention and was enacted to provide for the effective prevention and control of anti-social activities in the State of Kerala. As per the provisions of the Act, power has been conferred on the Government or an officer authorized under sub-section (2) of Section 3 to order the detention of the person if satisfied, on information received from a police officer not below the rank of Superintendent of Police with regard to the activities of any ‘known goonda’ or ‘known rowdy’, with a view to prevent such person from committing any anti-social activity within the State of Kerala. An order passed under Section 3 shall not remain in force for more than 12 days unless the same is approved by the Government or by the Secretary, Home Department, as authorized.

7. Under Article 22 of the Constitution of India, no law providing for preventive detention shall authorize the detention of a person for a period longer than three months, unless the Advisory Board, duly constituted, has reported before the expiration of the said period of three months that there is, in its opinion, sufficient cause for detention. Article 22(4)(a) clearly indicates that even if the order of detention does not prescribe any period, such an order of detention cannot be in force for a period beyond three months, unless the Advisory Board before the expiration of three months opines that there is sufficient cause for detention. In other words, if the Advisory Board does not give its opinion within a period of three months from the d