Dhanya v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 18TH DAY OF NOVEMBER 2013/27TH KARTHIKA, 1935 WP(Crl.).No. 429 of 2013 () ---------------------------- ## PETITIONER(S): ----------------------- DHANYA, 25 YEARS, W/O.JAYACHANDRAN, VAYALILPUTHEN VEEDU, PERINADU EDAVATTAM CHERRY, PERINADU VILLAGE, KOLLAM TALUK KOLLAM DISTRICT. BY ADV. SRI.C.RAJENDRAN ## RESPONDENT(S): ------------------------ ## 1. STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, HOME DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. THE DISTRICT MAGISTRATE, KOLLAM DISTRICT, KOLLAM-13. 3. THE KOLLAM CITY POLICE COMMISSIONER, ASRAMAM.P.O, KOLLAM DISTRICT KOLLAM-691001. NAME AND DESIGNATION OF R3 IS CORRECTED AS 'THE DISTRICT SUPERINTENDENT OF POLICE KOLLAM DISTRICT (RURAL), KOTTARAKKARA KOLLAM DISTRICT AS PER ORDER DATED 06.11.2013 IN IA NO.14396/2013) ## 4. THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT-691501. ## 5. THE SUPERINTENDENT, CENTRAL PRISON, THIRUVANANTHAPURAM-695001. 6. THE SUPERINTENDENT, CENTRAL PRISON, VIYOOR, THRISSUR DISTRICT-680001. R1-R6 BY ADV. ADDL.DIRECTOR GENERAL OF PROSECUTION R BY GOVERNMENT PLEADER THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 18-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 429 of 2013 () ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER BEARING NO. M 9- 31337/KAA(P)A/13 DATED 8/7/13. EXT.P2 A TRUE PHOTOCOPY OF THE GROUNDS OF DETENTION DATED 8/7/13. EXT.P3 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTION ORDER OF DETENTION DATED 8/7/2013 EXT.P4 A TRUE PHOTOCOPY OF THE JAIL ADMISSION AUTHORIZATION DATED 8/7/2013 BY 2ND RESPONDENT EXT.P5 A TRUE PHOTOCOPY OF THE FINAL REPORT DATED 4/6/2013 SUBMITTED BY THE 3RD RESPONDENT EXT.P6 A TRUE PHOTOCOPY OF THE PRELIMINARY REPORT DATED 04/05/2013 EXT.P7 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1030/2009 OF KUNDARA POLICE STATION EXT.P8 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1030/2009 OF KUNDARA POLICE STATION. EXT.P9 A TRUE PHOTOCOPY OF THE CHARGE SHEET CRIME NO.1030/2009 OF KUNDARA POLICE STATION EXT.P10 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.2209/2011 OF KUNDARA STATION. EXT.P11 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.2209/2011 OF KUNDARA POLICE STATION. EXT.P12 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO.2209/2011 OF KUNDARA POLICE STATION. EXT.P13 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.46/11 OF KUNDARA POLICE STATION. EXT.P14 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.46/11 OF KUNDARA POLICE STATION. EXT.P15 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.46/11 OF KUNDARA POLICE STATION. EXT.P16 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1338/12 OF KUNDARA POLICE STATION. EXT.P17 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1338/12 OF KUNDARA POLICE STATION. EXT.P18 A TRUE PHOTOCOPY OF THE FINAL REPORT IN CRIME NO.1338/12 OF KUNDARA POLICE STATION. EXT.P19 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.476/2006 OF KUNDARA POLICE STATION. EXT.P20 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.476/2006 OF KUNDARA POLICE STATION. EXT.P21 A TRUE PHOTOCOPY OF THE CHARGESHEET IN CRIME 476/2006 KUNDARA POLICE STATION. EXT.P22 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.693/2013 OF KUNDARA POLICE STATION. EXT.P23 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.693/2013 OF KUNDARA POLICE STATION. EXT.P24 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 22/07/2013. EXT.P25 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 29/07/2013. /TRUE COPY/ PS TO JUDGE ## **C.R.** ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------W.P(Crl).No.429 of 2013 ------------------------------------------Dated this the 18[th] day of November, 2013 ## **JUDGMENT** ## Antony Dominic, J. 1.Petitioner is the wife of Jayachandran @ Unni (hereinafter referred to as the detenu for short). The detenu was accused in Crime Nos.476/06, 1030/09, 2209/11, 46/12, 1338/12 and 693/13 of the Kundara Police Station, involving various offences under the Indian Penal Code. Based on the above, the 4[th] respondent submitted Ext.P6 report dated 4.5.2013 to the third respondent and the third respondent submitted Ext.P5 report under section 3 of the Kerala Anti-social Activities (Prevention) Act, 2007, hereinafter referred to as 'KAAPA' for short, to the second respondent requesting that the detenu be classified as a 'known rowdy' under section 2(p) (iii) of the Act and he be detained under section 3 thereof. Based on the above, the second respondent considered the matter. Thereafter, he issued Ext.P1 order dated 8.7.2013. In that order, in view of the involvement of the detenu in Crime Nos.1030/09, 2209/11, 46/12 and 1338/12 of the Kundara WPCR.429/13 2 Police Station, the second respondent held the detenu to be a 'known rowdy' under section 2(p)(iii) of the Act. Thereafter, adverting to Crime Nos.476/06 and 693/13 of the Kundara Police Station, the second respondent also held it necessary to detain the detenu under section 3 of the Act. Accordingly, the detenu was detained on 20.7.2013, when Ext.P2 grounds of detention, Ext.P3 memo for execution and Ext.P4 jail admission authorization were also served on him. While undergoing detention, the detenu submitted Ext.P24 representation dated 22.7.2013 to the detaining authority which was received by the detaining authority on 24.7.2013. He also submitted Ext.P25 representation dated 29.7.2013 addressed to the Government through the Superintendent of the Central Jail, Viyyur. While Ext.P24 was returned by the second respondent on the ground that he did not have power to entertain the same, the Superintendent of the Central Jail, Viyyur forwarded Ext.P25 representation to the Government on 31.7.2013. The Government approved the detention by its order dated 31.7.2013. Ext.P25 representation was received WPCR.429/13 3 by the Government on 7.8.2013 and was rejected by order dated 12.8.2013. In the mean time, the Government made reference under section 9 of the Act on 5.8.2013 and based on the report of the Advisory Board, passed order dated 9.9.2013, confirming the detention. It is in this factual background, the writ petition has been filed challenging Ext.P1 order of detention and with a prayer to issue a writ of habeas corpus for the production of the detenu and to set him at liberty. 2. One of the contentions raised by the learned counsel for the petitioner was regarding the manner in which Ext.P25 representation was dealt with in this case. According to the learned counsel, the representation was forwarded with inordinate delay, that on account of the delay, there is non compliance of section 9 of the Act and that the representation was not properly considered. - 3.The Additional Director General of Prosecution appearing for the respondents contended that there was no delay in either WPCR.429/13 4 forwarding the representation or dealing with the same and he also sought to justify the manner in which the representation was considered. - 4.We have considered the rival submissions made on this issue by both sides. 5. Admittedly, Ext.P25 representation is dated 29.7.2013 and was submitted by the detenu to the Superintendent of the Jail. The Superintendent forwarded the same to the Government on 31.7.2013 and going by the averments in paragraph 12 of the counter affidavit filed by the first respondent, the representation was received by the Government on 7.8.2013. The representation was rejected by the Government by its order dated 12.8.2013 and the files produced before us show that copies of the orders were served on the detenu on 20.8.2013 and 29.8.2013 and his acknowledgements have been obtained. These facts, therefore, would show that if the delay is reckoned from 29.7.2013, there is a delay of 9 days in WPCR.429/13 5 the Government receiving the representation, there is a delay of 14 days in passing the order and there a delay of 22 days in serving the order. 6. Although learned Addl. DGP attempted to explain the delay in the receipt of the representation by stating that it has occurred on account of the postal delay, even if the same is accepted as true, all that we want to reinstate in this context is what the Apex Court has held in the judgment in **Vijay Kumar** v. **State of Jammu and Kashmir** [AIR 1982 SC 1023], where, it has been held thus: "The Jail authority is merely a communicating channel because the representation has to reach the Government which enjoys the power of revoking the detention order. The intermediary authorities who are communicating authorities have also to move with an amount of promptitude so that the statutory guarantee of affording earlier opportunity of making the representation and the same reaching the Government is translated into action. The corresponding obligation of the State to consider the representation cannot be whittled down by merely saying that much time was lost in the transit. If the Government enacts a law like the WPCR.429/13 6 present Act empowering certain authorities to make the detention order and also simultaneously makes a statutory provision of affording the earliest opportunity to the detenu to -make his representation against his detention to the. Government and not the detaining authority, of necessity the State Government must gear up its own machinery to see that in these cases the representation reaches the Government as quickly as possible and it is considered by the authorities with equal promptitude. Any slackness in this behalf not properly explained would be denial of the protection conferred by the statute and would result in invalidation of the order." - 7.Following this judgment, it has also been held in **Aslam Ahmed Zahire Ahmed Shaik** v. **Union of India and others** [AIR 1989 SC 1403] in paragraph 9 thus: “9.Thus when it is emphasised and re- emphasised by a series of decisions of this Court that a representation should be considered with reasonable expedition, it is imperative on the part of every authority, whether in merely transmitting or dealing with it, to discharge that obligation with all reasonable promptness and diligence without giving room for any complaint of remissness, indifference or avoidable delay because the delay, caused by slackness on the part of any WPCR.429/13 7 authority, will ultimately result in the delay of the disposal of the representation which in turn may invalidate the order of detention as having infringed the mandate of Art. 22(5) of the Constitution.” - 8.In so far as this case is concerned, there is yet another angle from which this appeal is to be viewed. Section 9 of the Act provides for reference to the Advisory Board. This section reads thus: **“9. Reference to Advisory Board** - In every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected, and, in the case where the order has been made by an authorised officer, the report of such officer under sub-section (3) of Section 3.” - 9.Reading of this provision would show that the representation, if any, that is made by a person affected is liable to be forwarded by the Government to the Advisory Board. In so far as this case is concerned, while the representation Ext.P25 WPCR.429/13 8 made by the detenu was received by the Government only on 7.8.2013, reference as contemplated in section 9 of the Act was made by the Government on 5.8.2013. Therefore, as a result of the delay in the Government receiving the representation, the detenu lost his precious right to have his representation forwarded by the Government under section 9 of the Act to the Advisory Board. This, certainly, is a prejudice which the detenu has suffered and in our view, the fact that the detenu was heard by the Advisory Board and that he had also represented to the Advisory Board is no defence to such a failure. Consequently, in the facts of this case, we are satisfied that on account of the above fact alone, the rights of the detenu under Article 22(5) have been violated. Therefore, we hold his detention illegal and unconstitutional and on that ground, set aside Ext.P1. 10. Since we have accepted the above contention raised by the learned counsel for the petitioner, we are not dealing with the other contentions raised regarding the alleged failure of the WPCR.429/13 9 detaining authority in considering Ext.P24 representation, that his representation was not properly considered and that there is no live link between the prejudicial activity and the purpose of detention. Therefore, Ext.P1 detention order is set aside and we direct that the detenu Jayachandran @ Unni be released forthwith unless he is required to be detained in some other case. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.