K. Prabhakaran v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE P.D.RAJAN MONDAY, THE 12TH DAY OF AUGUST 2013/21ST SRAVANA, 1935 WP(Crl.).No. 323 of 2013 (S) ----------------------------- PETITIONER(S): ----------------------- ## K.PRABHAKARAN S/O.ACHUTHAN, KUNNATH HOUSE, KANNOTHUMCHAL ELAYAVOOR, CHOVVA POST, KANNUR DISTRICT-670 006. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S): ------------------------- ## 1. STATE OF KEARALA - REPRESENTED BY THE SECRETARY HOME AND VIGILANCE DEPARTMENT THIRUVANANTHAPURAM-695 001. ## 2. THE DISTRICT MAGISTRATE (DISTRICT COLLECTOR), KANNUR-670 001. 3. THE SUPERINTENDENT CENTRAL PRISON, VIYYUR-680 010, THRISSUR DISTRICT. - R. BY ADDL.DGP SRI.K.I.ABDUL RASHEED THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 12-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl.).No. 323 of 2013 (S) ----------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- - EXHIBIT P1.TRUE COPY OF THE ORDER OF DETENTION NO.SS1-2011/42790/13 DATED 7/10/2011 ALONG WITH THE APPENDED NOTES ON THE GROUNDS ISSUED BY THE 2ND RESPONDENT. - EXHIBIT P2.TRUE COPY OF FINAL REPORT DATED 8/9/2011 SUBMITTED BY THE SUPERINTENDENT OF POLICE, KANNUR TO THE 2ND RESPONDENT. - EXHIBIT.P3. TRUE COPY OF THE REPRESENTATION DATED 15/5/2013 SUBMITTED BY THE PETITIONER TO THE ADVISORY BOARD. - EXHIBIT.P4. TRUE COPY OF THE ORDER OF APPROVAL NO.33313/SS A1/2013 DATED 6/4/2013 ISSUED BY THE 1ST RESPONDENT. - EXHIBIT.P5. TRUE COPY OF THE ORDER OF CONFIRMATION G.O.(RT) NO.1385/2013/HOME DATED 22/5/2013 ISSUED BY THE 1ST RESPONDENT. /TRUE COPY/ PS TO JUDGE ## **ANTONY DOMINIC & P.D.RAJAN, JJ.** ------------------------------------------- W.P(Crl).No.323 of 2013 ------------------------------------------Dated this the 12[th] day of August, 2013 ## **JUDGMENT** ## Antony Dominic, J. - 1.In this writ petition, the petitioner is challenging the detention of his son Ranjith under the provisions of the Anti-Social Activities (Prevention) Act, 2007, hereinafter referred to as the 'Act', for short. 2.Ext.P2 is the report made by the Superintendent of Police, Kannur on 8.9.2011, giving the details of five criminal cases in which Ranjith is an accused. On that basis, he sought a declaration that Ranjith is a 'Known Rowdy' and his detention under section 3(3) of the Act. On the basis of Ext.P2 report, the second respondent, the detaining authority under the Act, declared Ranjith as a 'Known Rowdy' under section 2(p) of the Act and ordered his detention under section 3(1) thereof. Though Ext.P1 order was issued as early as on 7.10.2011, the detenu was arrested only on 28.3.2013 and is in detention since then. It is in these circumstances, this writ petition has WPCR.323/13 2 been filed with a prayer to set aside Ext.P1 order and to set the detenu at liberty. - 3.The grounds on which the order is impugned are that (1) there is long and unexplained delay not only in passing Ext.P1 order but also in its execution by way of arrest of the detenu, (2) that Exts.P1 and P2 were served on the detenu in English and as the detenu is not familiar with that language, his constitutional right to represent against the detention has been adversely affected and (3) that detaining authority was guilty of delay in reporting the matter forthwith to the Government as required in section 3(3) of the Act. On these grounds, learned counsel for the petitioner contended that the detention is illegal and therefore, the detenu is entitled to be set at liberty. - 4.We heard the learned counsel for the petitioner as also learned Additional Director General of Prosecution who appeared on behalf of the respondents. WPCR.323/13 3 - 5.Among the contentions urged, we shall first consider the contention of the counsel for the petitioner regarding the supply of Ext.P2 report and Ext.P1 order in English language. According to the petitioner, the detenu is only having elementary education and he does not know or understand English language. It is stated that in in paragraph 3 of Ext.P3 representation filed by the detenu on 15.5.2013, the detenu himself had complained that he does not know English and that since Exts.P1 and P2 were in English, he has been prejudiced. - 6.However, learned Addl.DGP contended that the grounds of detention which was served on the detenu was in Malayalam. He also argued that immediately after the detenu was detained on 28.3.2013, the detenu submitted a representation to the Advisory Board, which was forwarded on 4.4.2013. It was pointed out that in the said representation, the detenu had no complaint that since the documents supplied were in English, he was prejudiced. It is also argued that the Advisory Board heard the detenu and made its report on 15.5.2013 which also WPCR.323/13 4 shows that the detenu did not have a complaint about the language in which the documents were supplied. On that basis, it is contended by the learned Addl. DGP that the grievance regarding the language in which Exts.P1 and P2 were drafted, as highlighted in Ext.P3 representation and also before this Court, are an afterthought. - 7.He also invited our attention to the orders of approval and confirmation passed by the Government which were also in English and informed us that the detenu has acknowledged the receipt of these orders without any protest. The counsel also relied on the decisions of the Apex Court in **J.Abdul Hakeem** - v. **State of Tamil Nadu & Others** [AIR 2005 SC 3677] and **State of Tamil Nadu & Another** v. **Abdullah Kadher Batcha & Another** [AIR 2009 SC 507] to impress upon us that the detenu has not proved any prejudice on account of supply of the documents in question in English, justifying interference of the order of detention. - 8.Admittedly, Ext.P2 report of the sponsoring authority, the Superintendent of Police, Kannur, and Ext.P1 order passed by WPCR.323/13 5 the detaining authority under section 3 of the Act are in English. It is the specific case of the petitioner that the detenu is having only elementary education and the detenu himself has, in Ext.P3 representation dated 15.5.2013, complained to the Government that he is not familiar with English and that therefore, supply of Exts.P1 and P2 in that language has caused prejudice. The right of a person who is in preventive detention, to represent against his detention, is constitutionally recognised in Article 22(5) of the Constitution of India. That right is also statutorily recognised in section 7 of the Act. The right so recognised to the detenu is for the purpose of enabling him to make an effective representation canvassing the invalidity of his detention. Such a right can be effectively exercised by the detenu only if the contents of the documents which are passed against him or relied on against him, which are also constitutionally and statutorily required to be served on the detenu, are drafted in a language which is known to him. This statutory obligation of the detaining authority and the right of the detenu has been recognised in a series of judgments of the Apex Court as also this Court and WPCR.323/13 6 since the legal position is well settled, we do not think it necessary to burden this judgment citing all of them. - 9.As we have already stated, it is the specific case of the petitioner and the detenu himself that the detenu is not familiar with English language. On the other hand, it is the respondents who are canvassing before us that by the supply of those documents in English, no prejudice has been caused to the detenu to exercise his right to make a representation. In such a case, it is for the respondents to have demonstrated before us that either the detenu is familiar with the language in which Exts.P1 and P2 are drafted or that the detenu had fully understood the contents of those documents. There is total dearth of materials in this behalf. Therefore, in the facts of this case, we are bound to accept the case of the detenu that on account of supply of Exts.P1 and P2 in English, a language which is not familiar to him, his constitutional right to represent against the detention order has been violated. This conclusion of ours is in no manner affected by the principles laid down by the Apex Court in the judgments in **J.Abdul** WPCR.323/13 7 **Hakeem** and **Abdullah Kadher Batcha** (supra), which were relied on by the learned Addl. DGP. The aforesaid discussion itself would show that Ext.P1 order of detention is illegal and unconstitutional. - 10.Since we have already concluded that Ext.P1 order is unconstitutional for the aforesaid reasons, it is unnecessary for us to deal with the other contentions raised by the counsel for the petitioner. - 11.In the result, Ext.P1 order is set aside. We direct the respondents to release the detenu forthwith unless he is required to be detained for the purpose of any other matter. Writ petition ordered accordingly. Sd/ANTONY DOMINIC, Judge. Sd/- P.D.RAJAN, Judge. kkb.