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2024 Supreme(Online)(KER) 30790
HIGH COURT OF KERALA
A. Muhamed Mustaque, S.MANU, JJ
KAVITHA – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.) 378/2024
C.RAJENDRAN, B.K.GOPALAKRISHNAN, R.S.SREEVIDYA, ADVOCATE GENERAL OFFICE KERALA, ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11), ADDL. STATE PUBLIC PROSECUTOR(AG-28), K A ANAS PUBLIC PROSECUTOR
The failure to provide legible copies of the relevant documents to the detenu violates the detenu's right under Article 22(5) of the Constitution.
Headnote:
Detention - Kerala Anti Social Activities (Prevention) Act, 2007 - Section 3 - Legible copies of documents not provided to detenu, violating right under Article 22(5) of the Constitution
Fact of the Case:
The petitioner is the wife of the detenu, Kannan, who has been detained under Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 (KAAPA Act). Kannan was involved in 10 crimes, out of which 6 were considered for the detention order. The detenu raised an objection stating that he was not served with legible copies of the relevant documents.
Finding of the Court:
The court found that the detenu's objection was formidable, as the records produced before the court were not legible, and it was evident that the detenu was not provided with legible copies of the documents. The court held that the making of a representation against the detention is a constitutionally protected right, and this cannot be treated as an empty formality if a person is deprived of the documents relied upon in the order of detention.
Issues: Whether the detention of the detenu is illegal due to the failure to provide legible copies of the relevant documents to the detenu.
Ratio Decidendi: The court held that the failure to provide legible copies of the relevant documents to the detenu violated his right under Article 22(5) of the Constitution, and therefore, the detention of the detenu is illegal.
Final Decision: The court ordered the release of the detenu forthwith, if he is not otherwise required in any other case under the law.
Dated this the 28th day of May 2024 A.Muhamed Mustaque, J. Petitioner is the wife of the detenu, namely Kannan.
Kannan has been detained invoking the provisions of Section 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 (KAAPA Act). He is involved in 10 crimes out of which six crimes were considered for passing detention order. The detention order was passed on 22.01.2024. The last prejudicial activity was on 26.10.2023. The detenue was in judicial custody and released on bail on 15.11.2023.
2. On serving detention order and relevant records, detenu raised an objection stating that he was not served with a legible copy of the documents. The learned Government Pleader has a case that such objection was not received.
3. Learned Counsel for the petitioner relied on the decision reported in Dharmistabhagat v. State of Karnataka and Another 1989 KHC 1108 argued that the Refusal on the part of the detaining authority to supply legible copies of the said relevant document to the detenu for making an effective representation infringed the detenu's right under Article 22(5) of the Constitution of India.
4. The learned Public Prosecutor rebutting the arguments submitted that detnue had endorsed legible copy and therefore objection cannot be raised at this stage. The Public Prosecutor placed before us the relevant records, wherein it can be seen that detenu have acknowledged the receipt of legible copies. It is to be noted that such acknowledgment has been made, while detenu is detained in the prison. However, on a perusal of the entire records itself we are convinced that his objection is formidable. Records produced before this Court itself are not legible and one cannot make out the narration in such documents. If records otherwise speaks that documents are not legible, court should accept such contentions. It is to be noted that making a representation against the detention is a constitutional protected right . This cannot be treated as an empty formality if a person is ordered to detained or deprived of document which are relied against the order of detention that would enure the constitutional protected right to such person.
5. In such circumstances, we declare that the detention of the detenu is illegal. Accordingly, we order WP(CRL.) NO. 378 OF 2024 release of the detenue forthwith, if he is not otherwise required in any other case under law.
This W.P.(Crl.) is disposed of as above.
