The court affirmed that a detention order under the Kerala Anti-Social Activities Act is valid despite delays in proposal submission if the detenu was in custody, and representation need not be considered before Advisory Board review.

JUDGMENT :

P.B.Suresh Kumar, J.

This writ petition is instituted seeking a writ of habeas corpus directing the respondents to produce the son of the petitioner, Muhammed Muneer who is undergoing detention in terms Ext.P1 order issued under Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (the Act) and set him at liberty. Ext.P1 order was issued on 25.10.2024 and it was executed on 26.10.2024. Ext.P1 order is issued on the premise that the detenu is a “known rowdy”.

2. There was an earlier order of detention against the detenu under the Act and the same was revoked by the Government on the basis of the report of the Advisory Board constituted under the Act. It was thereafter that the present order of detention has been issued taking into account the prejudicial activities in which the detenu was indulged in after revocation of the earlier order of detention. Two cases in which the detenu was involved after his release pursuant to the revocation of the earlier order of detention have been considered for the purpose of issuing the present order of detention. They are Crime No.1184 of 2024 of Perinthalmanna Police Station and Crime No.542 of 2024 of Cherpulassery Police Station. Among the said cases, Crime No.542 of 2024 of Cherpulassery Police Station is one registered on 11.08.2024. The detenu is the first accused in the said case. He was arrested in connection with the said case on 22.08.2024 and was enlarged on bail on 15.10.2024. It was while he was undergoing custody in the said case, the proposal was made on 27.09.2024 for his detention and he was detained on 25.10.2024 after his release on bail on 15.10.2024.

3. It was contended by the learned counsel for the petitioner that Ext.P2 representation preferred by the detenu against the order of detention was received by the Government on 06.11.2024 and without considering the same, the case of the detenu has been placed before the Advisory Board. According to the learned counsel, inasmuch as the representation of the detenu against the detention order has been received by the Government before the case of the detenu was placed before the Advisory Board, it should have been considered by the Government. It was also contended by the learned counsel that there is a long and unexplained delay in submitting the proposal for the detention and that the same snapped the live link between the order of detention and the grounds of detention. It was further contended by the learned counsel that even though the earlier order of detention was revoked by the Government, the reason for revocation of the same has not been mentioned in the order nor has the same been communicated to him. According to the learned counsel, the detention order is bad on account of that reason also. It was further contended by the learned counsel that one among the cases namely, Crime No.1184 of 2024 of Perinthalmanna Police Station is not a crime which could have been taken into account for the purpose of deciding whether the detenu is a “known rowdy” as it is not a crime which involves any anti-social activity. It was further contended by the learned counsel that Crime No.542 of 2024 of Cherpulassery Police Station is a case involving an offence punishable under the Bharatiya Nyaya Sanhita (BNS) and that the offences under the BNS are not notified for the purpose of the Act.

4. We have examined the contentions raised by the learned counsel for the petitioner. In K.M. Abdulla Kunhi v. Union of India, (1991) 1 SCC 476, it was held by the Apex Court that in cases where the representation of the detenu is received before the case is referred to the Advisory Board, but there is no time to dispose of the representation before referring the case to the Advisory Board, then the representation must also be forwarded to the Advisory Board along with the case of the detenu. The Apex Court has also clarified that in such cases, there is no question of consideration of the representation before the receipt