Bhasi v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## THE HONOURABLE MR.JUSTICE K.M.JOSEPH THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 WP (CRL).No. 516 of 2011 (S) ====================== BHASI, AGED 56 YERS, MUNAMBAM PALLI-PORT P.O. ERNAKULAM DISTRICT-653 515. BY ADV.SRI.O.V.MANIPRASAD 1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO HOME DEPARTMENT GOVERNMENT SECRETARIAT TRIVANDRUM. 695 001. 2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE ERNAKULAM. 682 031. 3 THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL ERNAKULAM DISTRICT.682 001. 4 THE SUB INSPECTOR OF POLICE, MUNAMBAM POLICE STATION ERNAKULAM DISTRICT. 682 080. ## W.P.(CRL).NO.516 OF 2011 S 5 THE SUPERINTENDENT OF CENTRAL PRISON, VIYYOOR THRISSUR. 680 001. BY DIRECTOR GENERAL OF PROSECUTIONS SHRI T. ASIF ALI. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(CRL).NO.516 OF 2011 S PETITIONER'S EXHIBITS: EXT.P1TRUE COPY OF THE DETENTION ORDER DATED 05.09.2011 OF THE 2ND RESPONDENT. EXT.P2TRUE COPY OF THE GROUNDS OF DETENTION SERVED ON THE DETENU. EXT.P3TRUE COPY OF THE REPORT DATED 19.8.2011 MADE BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P4TRUE COPY OF THE REPORT DATED 21.7.2011 OF THE 4TH RESPONDENT. EXT.P5TRUE COPY OF THE ORDER DATED 16.8.2011 IN B.A.NO.6493/2011 OF THIS HONOURABLE COURT. EXT.P6TRUE COPY OF THE FIR IN CRIME NO.827/2009 OF MUNAMBAM POLICE STATION. EXT.P7TRUE COPY OF THE FIR IN CRIME NO.204/10 OF MUNAMBAM POLICE STATION. EXT.P8TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE DETENU BEFORE THE 1ST RESPONDENT. EXT.P9TRUE COPY OF THE REPRESENTATION DATED 30.09.2011 SUBMITTED BEFORE THE ADVISORY BOARD. EXT.P10. TRUE COPY OF LETTER DATED 19.1.2011 ISSUED ON BEHALF OF THE FIRST RESPONDENT INFORMING THE REJECTION OF EXHIBIT P8. RESPONDENTS' EXHIBITS: NIL. ## _**// TRUE COPY//**_ _**PS TO JUDGE**_ ## **K.M. JOSEPH &** **M. L. JOSEPH FRANCIS, JJ.** **-----------------------------------------** **W.P.(CRL).NO.516 OF 2011 S** **-----------------------------------------Dated this the 6th January, 2012** ## **JUDGMENT** ## **K.M. Joseph, J.** Petitioner is the father of the detenu by name Shebin @ Thampi who stands detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). The order of detention is passed on 05.09.2011. He was detained on 12.09.2011. Five cases are the basis of the order. 2. We heard the learned counsel for the petitioner and also the learned Director General of Prosecutions. Counsel for petitioner would submit as follows: - (1) There was non application of mind. - (2) The authority has not considered the bail order with stringent conditions. - (3) There is unexplained delay in the matter of disposal of the representation. _**WP(CRL).NO.516 OF 2011 S**_ _**2**_ 3. Learned Director General of Prosecutions would support the order. We feel that the Writ Petition is to be allowed on the ground of unexplained delay. 4. In paragraph 13 and Ground G of the Writ Petition, the petitioner raises the complaint of unexplained delay. Ext.P8 is a representation before the first respondent while Ext.P9 is the representation to the Advisory Board. Thereafter, it is specifically stated that they are not considered expeditiously and that though Exts.P8 and P9 are forwarded as early as on 30.09.2011, the same are not considered. He specifically states that unexplained delay in consideration of the representations submitted by the detenu vitiated the detention of the detenu. 5. In answer to the said allegations and also Ground G, in the Counter Affidavit filed by the first respondent, it is stated as follows: _“10. The contention of the petitioner in Para 13 and Ground G of the Writ Petition that the representation submitted by the detenu was not_ _**WP(CRL).NO.516 OF 2011 S**_ _**3**_ _considered, is totally incorrect. It is submitted that the representation dated 30.09.2011 submitted by the detenu through the Superintendent, Central Prison, Thiruvananthapuram was considered by the Additional Chief Secretary (Home & Vigilance) and found that the contentions/allegations raised by the detenu in the were representation legally unsustainable. Accordingly, the same was rejected in Government letter No.73673/SS.A5/11/Home dated 19.10.2011. Hence it may be seen that the averment of the petitioner is contrary to the very facts.”_ 6. If there is unexplained delay in the matter of disposal of the representation made by the detenu held under a law relating to preventive detention, it itself is a ground to hold that the continued detention is illegal. Delay of 21 days was found to be fatal in the decision in Sulaiman v. State of Kerala (2010 (3) KLT 790). In this case, a perusal of the statements in the Counter Affidavit which we have extracted, would tend to show that twenty days' time was taken in the disposal of the representation. There is no attempt to explain the twenty days' delay. _**WP(CRL).NO.516 OF 2011 S**_ _**4**_ 7. In view of the position in law and in the facts of this case, the petitioner is entitled to succeed. The Writ Petition is allowed. We declare that the continued detention of the detenu, Shri Shebin @ Thampi is illegal and we order that he shall be released forthwith unless his detention is necessary or required in connection with any other case. Registry will communicate this Order to the concerned Prison Authorities forthwith. Sd/= **K.M. JOSEPH, Sd/= M. L. JOSEPH FRANCIS,** _**PS to Judge**_ **JUDGE** **JUDGE** **kbk.** ## _**//True Copy//**_ # _**WP(CRL).NO.516 OF 2011 S 5**_