ABOOBACKAR @ RAJAN v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 07TH DAY OF JANUARY 2020 / 17TH POUSHA, 1941** **WP(Crl.).No.351 OF 2019** ## **PETITIONER:** **ABOOBACKAR @ RAJAN, AGED 75 YEARS S/O.ABOOBACKAR, KANNAKARA THEKKATHIL, PERINGALA VILLAGE, FROM SAKEENA MANZIL, KAYAMKULAM MURI, ALAPPUZHA DISTRICT.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (HOME DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.** - **2 THE DISTRICT MAGISTRATE, ALAPPUZHA DISTRICT - 688 001.** - **3 THE DISTRICT POLICE CHIEF, ALAPPUZHA DISTRICT - 688 001.** - **4 THE SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM, ALAPPUZHA DISTRICT - 690 502.** **WP(Crl.) No.351 OF 2019** **2** - **5 THE SUPERINTENDENT, CENTRAL PRISON, POOJAPURA, THIRUVANANTHAPURAM - 695 012.** - **6 THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR - 680 010.** **BY ADDL. DIRECTOR GENERAL OF PROSECUTION SRI.SURESH BABU THOMAS** **PUBLIC PROSECUTOR SRI. K.A. ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 07.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.) No.351 OF 2019** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 7[th] day of January, 2020**_ ## _**Ravikumar, J.**_ This writ petition is filed by the father of one Mujeeb @ Vetta Mujeeb, S/o.Aboobacker @ Rajan, Kannakara Thekkathil, Peringala Village, the detenu, seeking issuance of writ in the nature of Habeas Corpus commanding the respondents to produce the detenu before this Court, to quash Ext.P1 order of detention which was approved and confirmed by the government and to set the detenu at liberty. 2. The learned counsel appearing for the petitioner submits that the indisputable facts obtained would make the order of detention liable to be held as constitutionally invalid in the light of the decision of the Apex Court in _**Golam Biswas v. Union of India and another** [2015 KHC 5588]._ **WP(Crl.) No.351 OF 2019** **4** 3. To appreciate the said contention of the learned counsel appearing for the petitioner, a succinct narration of the facts is inevitable. Earlier, an order of detention was passed against the detenu reckoning registration of five crimes against him in Kayamkulam Police Station, viz. Crime Nos.1005/2012, 2174/2016, 2175/2016, 2185/2016 and 2342/2016. The present Ext.P1 order of detention was passed under Section 3(1) read with Section 13(2)(i) and (ii) of the Kerala Anti-Social Activities (Prevention) Act, 2007, taking into account the registration of Crime No.2787/2018 at Kayamkulam Police Station subsequently, to be precise on 31.10.2018, under Sections 143, 147, 148, 149, 323, 324 and 326 IPC and Sections 27(1) and 5(a) of the Arms Act. Ext.P1 order was executed on 27.05.2019. After its execution, the detenu filed Ext.P3 representation, which admittedly was received by the 1[st] respondent on 19.06.2019. The said representation was rejected by the 1[st] respondent on 09.07.2019. Later, Ext.P1 order was confirmed as per Ext.P6 order dated 07.08.2019. The contention of the petitioner is that the counter affidavit filed **WP(Crl.) No.351 OF 2019** **5** by the 1[st] respondent, more particularly, paragraph 13 thereunder, would reveal that Ext.P3 representation was disposed of on 09.07.2019, when the case of the detenu was pending consideration before the Advisory Board. In paragraph 13 itself, it is specifically stated that the report of the Advisory Board was received by the 1[st] respondent only on 22.07.2019. In the light of the said facts specifically mentioned in the counter affidavit filed by the 1[st] respondent, it is submitted that the fact that Ext.P3 representation was considered and rejected during the pendency of the case of the detenu before the Advisory Board, cannot be disputed. Consideration and rejection of such a representation filed by a detenu preventively detained when his case is pending before the Advisory Board, is sufficient to invalidate the order of detention in the light of the dictum laid down by the Apex Court in _**Golam Biswas** (supra)_ , it is submitted. 4. The aforesaid factual details are not disputed by the learned Public Prosecutor. On a careful scrutiny of the counter affidavit filed by the 1[st] respondent, it is evident that those **WP(Crl.) No.351 OF 2019** **6** basic facts are indisputable, in the light of the specific statements in paragraph 13 of the counter affidavit filed by the 1[st] respondent. In such circumstances, the fact is that Ext.P3 representation which was received on 19.06.2019 was rejected on 09.07.2019 at a time when the case of the detenu was pending consideration before the Advisory Board, cannot be disputed. Therefore, the short question is whether Ext.P1 order of detention is invalid in the light of the decision in _**Golam Biswas** (supra)_ . It is not disputed before us that in the light of the decision in _**Golam Biswas** (supra)_ , a representation received from the detenu could not be rejected during the pendency of the proceedings against the detenu concerned before the Advisory Board. If such a representation is rejected pending consideration of the case of a person detained preventively before the Advisory Board, the order of detention passed against him would become constitutionally invalid, going by the dictum laid down by the Apex Court in _**Golam Biswas** (supra)._ In the light of the indisputable factual position obtained in the case on hand and in the light of the **WP(Crl.) No.351 OF 2019** **7** decision in _**Golam Biswas** (supra)_ , Ext.P1 order is to be held as constitutionally invalid. We declare it as constitutionally invalid. 5. In such circumstances, this Writ Petition (Crl.) is allowed and consequently, Ext.P1 order of detention is set aside. In case the detention of the detenu in question, viz. Mujeeb @ Vetta Mujeeb, is not required in connection with any other case, he shall be released forthwith. Registry is directed to send the gist of this judgment forthwith to the Central Prison, Kannur. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/08.01.2020 **WP(Crl.) No.351 OF 2019** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER DATED 05/03/2019 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTING ORDER OF DETENTION DATED 05/03/2019.** **EXHIBIT P3 A TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE DETENU BEFORE THE ADDITIONAL CHIEF SECRETARY, THIRUVANANTHAPURAM DATED 13/06/2019.** **EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER OF APPROVAL DATED 12/06/2019. EXHIBIT P5 A TRUE PHOTOCOPY OF THE ORDER OF THE 1ST RESPONDENT DATED 05/08/2019. EXHIBIT P6 A TRUE PHOTOCOPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 07/08/2019. EXHIBIT P7 A TRUE PHOTOCOPY OF THE ORDER ALONG WITH THE BAIL BOND DATED 14/03/2019.**