IMPORTANT POINT
The court affirmed that detention orders remain valid even if representations are considered after confirmation, provided they are independently reviewed by the government.

JUDGMENT :

Raja Vijayaraghavan, J.

The petitioner is undergoing detention pursuant to Ext.P1 order dated 05.06.2024 issued by the competent authority under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAP Act’ for brevity). He has approached this Court seeking the issuance of a Writ of Habeas Corpus to set him at liberty.

2. It appears that the petitioner had earlier approached this Court, seeking issuance of a writ of habeas corpus for release of the detenu by filing W.P(Crl.) No.743 of 2024. While assailing the order of detention, the following contentions were raised:

i) The Detaining Authority did not hear the detenu before passing Ext.P1 order.

ii) Neither the Detaining Authority nor the Sponsoring Authority had read out and explained to the detenu the report of the Sponsoring Authority.

iii) There is a delay of one month and 25 days from the last prejudicial activity to the date of detention order which would vitiate the aforesaid order.

iv) The order of detention was not approved by the Government within twelve days as required under Section 3(3) of KAA(P)A.

v) The first crime reckoned by the authorities concerned for the classification of the detenu as a ‘known rowdy’ has been initiated by the officials of the Customs Department, and hence it ought to have been exempted from being considered.

vi) The 3rd and 4th crime attributed to the detenu arose out of the same transaction, and hence the authorities concerned ought to have excluded the same.

vii) The authorities concerned ought to have awaited the outcome of the proceedings under Section 107 of the Code of Criminal Procedure before taking decision as to the necessity to initiate preventive detention measures against the detenu.

viii) The authorities concerned ought to have considered the feasibility of resorting to externment of the detenu before opting for preventive detention.

ix) The authorities concerned ought to have considered the sufficiency of bail conditions imposed by the courts while granting bail to the detenu, in the crimes attributed against him, for ensuring that the detenu does not involve in further prejudicial activities.

x) There were no sufficient materials placed before the Detaining Authority for reckoning the last two crimes for the purpose of classifying the detenu as ‘known rowdy’.

3. This Court, by judgment dated 05.08.2024 dismissed the Writ Petition holding that there was no reason to interfere with the order.

4. Thereafter, the instant Writ Petition is filed on 24.09.2024 with a prayer to quash the order of detention and for the issuance of a writ of mandamus commanding the respondent to release the detenu.

5. Sri.M.H.Hanis, the learned counsel appearing for the petitioner submitted that the principles of res judicata cannot be made applicable to habeas corpus matters. He submitted that a fresh Writ Petition was necessitated owing to two main grounds. He contended that the detenu had earlier filed two representations before the Board one on 13.6.2024 and another on 19.06.2024. However, the said representations were not promptly considered. Though the representation dated 19.06.2024 was produced before this Court as Ext.P2 in the earlier Writ Petition, the non-consideration of the same in a prompt manner was not raised or considered by this Court. It is further submitted that the representation dated 13.06.2024 submitted through the counsel and filed before the 4th respondent was forwarded along with the opinion to the 1st respondent. The 1st respondent passed the order of confirmation on 29.07.2024 and it was thereafter that the representation dated 13.06.2024 was taken up and orders were passed on 31.07.2024. However, nothing is mentioned about the representation dated 19.06.2024. According to the learned counsel, independent and prompt consideration of the representation by the Advisory Board and by the detaining authority flows from Article 22(5) of the Constitution of India, and the delay in consideration or for that mat