Manukumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V`** ``` & THEHONOURABLEMR.JUSTICEG.GIRISH MONDAY,THE29[TH]DAYOFJULY2024/7THSRAVANA,1946 ``` ## **`WP(C) NO. 26465 OF 2024`** ``` PETITIONER: ``` ``` MANUKUMAR AGED31YEARS S/OSADASIVAN,NADUTHATTUVILAPUTHENVEETTIL, PALAPPUR,KALLIYUR,VELAYINIP.O, THIRUVANANTHAURAM,PIN-695522 ``` ``` BYADVS. M.H.HANIS T.N.LEKSHMISHANKAR NANCYMOLP. ANANDHUP.C. NEETHU.G.NADH ``` ``` RESPONDENT: ``` ``` STATEOFKERALA REPRESENTEDBYADDITIONALCHIEFSECRETARY, HOME(SSA)DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM,PIN-695001 ``` ``` OTHERPRESENT: ``` ``` SRIKAANAZ,PP ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 29.07.2024,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` 2 W.P(C) No. 26465 of 2024 ## **JUDGMENT** ## **Raja Vijayaraghavan, J.** The petitioner is undergoing detention pursuant to Ext.P1 order issued by the competent authority under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity). The records disclose that the detention order was passed on 20.02.2024, the same was executed on 27.02.2024 and confirmed by the Government on 23.04.2024. 2. It appears that the petitioner had earlier approached this Court, seeking issuance of a writ of habeas corpus for release of the detenu by filing W.P(Crl.) No.510 of 2024. In the said petition, it was contended that: - a) there was a long delay in passing the order of detention reckoned from the last prejudicial activity; - b) the crimes involved acts that were prejudicial to the maintenance of law and order and not prejudicial to public order; - c) that there was no live link between the last prejudicial activity and the order of detention; and 3 W.P(C) No. 26465 of 2024 - d) the government did not apply mind when imposing the maximum period of detention after securing the opinion from the Advisory Board. 3. This Court, by judgment dated 07.06.2024, after adverting to all the contentions advanced, dismissed the writ petition holding that there was no reason to interfere with the order. 4. Thereafter, this writ petition was filed on 23.07.2024 with a prayer to quash Ext.P3 and for the issuance of a writ of mandamus commanding the respondent to release the petitioner. 5. Sri.M.H.Hanis, the learned counsel appearing for the petitioner submitted that the principles of res judicata cannot be made applicable to habeas corpus matters. He submitted that a fresh writ petition was necessitated owing to three main grounds. The first ground is that the representation submitted by the petitioner and produced as Ext.P4 on 08.05.2024 has not been considered by the Government. The second ground is that though the detenu was released on bail on 14.02.2024, the said fact was not within the knowledge of the Detaining Authority as well as the Sponsoring Authority at the time of passing the order. The third ground is that a perusal of the order would disclose that it was based on the Report submitted by the Sub Divisional Assistant Police Commissioner 4 W.P(C) No. 26465 of 2024 that the detention order was passed. This is clearly violative of Section 3(1) of the Act. In order to substantiate these contentions, Sri.M.H.Hanis, the learned counsel appearing for the petitioner has referred to the observations made by the Apex Court in **Lallubhai Jogibhai Patel v. Union of India & Ors.**[1] , **Kamal alias Kamal Deep Meena v. State & Ors.**[2] and **Nisha Salim v. State of Kerala & Ors.**[3] . 6. In response, Sri.K.A.Anas, the learned Senior Government Pleader submitted that the writ petition cannot be maintained under law. He would refer to the observations made by a Division Bench of this Court in judgment dated 20.02.2024 in W.P.(Crl.) No.109 of 2024 and that of the Constitution Bench judgment of the Apex Court in **Ghulam Sarwar v. Union of India**[4] and it is argued that a writ of habeas corpus raising the very same grounds, cannot be entertained. It is pointed out by the learned counsel that the contentions raised by the petitioner before this Court in this writ petition were all raised before the Division Bench in the earlier writ petition and the same were all repelled. He would point out that the assertion made by the learned counsel that the Sub Divisional Assistant Police Commissioner’s Sponsorship Report is that the detention order passed is incorrect. He would further point out that the petitioner > 1 1981 KHC 571 2 2013 KHC 2680 3 2009(2)KHC1014 4 1967 KHC 679 5 W.P(C) No. 26465 of 2024 had submitted a representation on 07.03.2024, which was considered by the Government and its fate was communicated to the petitioner. Later, the petitioner submitted a representation dated 08.05.2024, which was much prior to the passing of the judgment by the Division Bench. The said representation was also considered and its fate was communicated to the detenu. 7. We have considered the submissions advanced and have gone through the records. 8. In **Nisha Salim v. State of Kerala and Ors.** [2019 (2) KHC 1014], this Court after referring to all previous precedents had held that when the grounds raised in the new writ petition are essentially the same, though couched in different terminology, such a writ petition cannot be maintained. It appears that a few contentions have been taken by the petitioner which were not raised before this Court earlier. In that view of the matter, despite the strong objection as regards maintainability raised by the learned government pleader, we decided to hear the matter on its merits as the liberty of an individual was involved. 9. The petitioner's first contention that an officer below the rank of Superintendent of Police had submitted the initial report of sponsorship does not appear to be correct. A perusal of the order would disclose that it 6 W.P(C) No. 26465 of 2024 is based on a report submitted by the Superintendent of Police that the proceedings were initiated under the KAAPA. 10. The next contention concerns the detaining authority's lack of awareness regarding the release of the detenu on bail on 14.2.2024. We note that the detenu took the very same contention before this Court earlier. This Court held that the sponsoring authority noted that if the detenu is released on bail, there is every likelihood of him repeating his activities. As held by the Apex Court in **Senthamilselvi V. State of Tamil Nadu[5] ,** the only requirement is that the detaining authority should be aware that the detenu is already in custody and is likely to be released on bail. Insofar as the representation said to have been submitted by the petitioner is concerned, the learned government pleader has pointed out that the first representation was submitted by the detenu of 7.3.2024 and the same was considered and its fate communicated to the detenu. Later, another representation was submitted on 8.5.2024. It was on 10.05.2024 that the earlier writ petition was filed and the same was disposed of on 7.6.2024. It cannot now be contended that the non-consideration of the representation was not raised when the earlier writ petition was considered. > 5 [2006 5 SCC 676] 7 W.P(C) No. 26465 of 2024 In view of the above discussion, the petitioner is not entitled to the reliefs prayed for. This petition will stand dismissed. **sd/-** **RAJA VIJAYARAGHAVAN V, JUDGE** **sd/G.GIRISH, JUDGE** PS/29/07/24 8 W.P(C) No. 26465 of 2024 ## **`APPENDIX OF WP(C) 26465/2024`** |**`PETITIONER EXHIBITS`**||||| |---|---|---|---|---| |**`Exhibit P1`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**<br>**`ORDER`**|||**`NO.`**| ||**`DCTVM/14523/2023-S13 DATED 20.02.2024`**|||| |**`Exhibit P2`**|**`A`**<br>**`TRUE`**<br>**`COPY`**|**`OF`**<br>**`THE`**<br>**`JUDGMENT`**|**`DATED`**|| ||**`07.06.2024`**<br>**`IN`**|**`W.P.(CRL.).NO.510/2024`**||**`OF`**| ||**`THIS HON'BLE COURT`**|||| |**`Exhibit P3`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**|**`G.O.(RT).NO.1199/2024`**||**`HOME`**| ||**`DATED 23.04.2024 `**|**`OF THE RESPONDENT`**||| |**`Exhibit P4`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**|**`THE`**<br>**`REPRESENTATION`**|**`DATED`**|| ||**`08.05.2024`**|||| |**`Exhibit P5`**|**`TRUE COPY OF THE `**|**`POSTAL ACKNOWLEDGMENT `**||**`CARD`**| ||**`EVIDENCING THE RECEIPT OF EXT P4`**|||| |**`Exhibit P6`**|**`A`**<br>**`TRUE`**<br>**`COPY`**<br>**`OF`**|**`THE`**<br>**`MEDICAL`**<br>**`CERTIFICATE`**||| ||**`DATED`**<br>**`21.06.2024`**<br>**`OF`**<br>**`THE`**<br>**`FATHER`**<br>**`OF`**|||**`THE`**| ||**`PETITIONER`**||||