High Court of KeralaDivision Bench2019-08-22Writ petition allowed; Exts.P1 and P6 quashed; ...

Nabeesath v. State of Kerala and others

Case / Petition Number:WP(Crl.) No.251 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. T. Ravikumar
N. Nagareesh
Judgment Date: 2019-08-22
Court Decision / Holding: This Writ Petition (Criminal) is allowed. Exts.P1 and P6 are quashed. The detenu Shanavas is to be released forthwith if not required in connection with any other case. Registry to send the gist of the judgment to the Viyyur Central Prison.
Final Disposition: Writ petition allowed; Exts.P1 and P6 quashed; detenu released forthwith if not required in other cases.

Parties to the Case

Appellants / Petitioners

Nabeesath

Respondents

State of Kerala represented by Addl. Chief Secretary (Home Department)
District Collector/District Magistrate, Thiruvananthapuram
Deputy Police Commissioner (Law and Order), Thiruvananthapuram City
Sub Inspector of Police, Fort Police Station, Thiruvananthapuram District
Superintendent of Police, Central Prison, Viyoor, Thrissur

Legal Representation & Advocates

Counsels for Petitioners

• Sri C. Rajendran
• Sri B. K. Gopalakrishnan

Counsels for Respondents

• Sri K. A. Anas

Case Synopsis & Summary

This habeas corpus petition challenges the preventive detention of Shanavas, a 22-year-old detainee, under Ext.P1 dated 07.12.2018. The detenu’s case was referred to the Advisory Board on 03.01.2019, with the Government’s approval of detention communicated via Ext.P6 on 31.01.2019 after receipt of the Board’s report (21.01.2019). The petitioner contends that Ext.P3, a representation against detention filed on 04.01.2019, was disposed by the Government as per Ext.P4 on 19.01.2019 without awaiting the Advisory Board’s report, even though the case had already been referred to the Board. Relying on the constitutional bench rulings in K.M. Abdulla Kunhi and B.L. Abdul Khader v. Union of India (AIR 1991 SC 574) and Frances Coralie Mullin v. W.C. Khambra (AIR 1980 SC 849), and later Golam Biswas v. Union of India (2015) 16 SCC 177, the Court frames the core issue: whether a representation after reference to the Board can be disposed of before the Board’s report. The Court holds that such disposal violates the controlling doctrine that the Board’s report should precede disposal of representations; Ext.P1 and Ext.P6 are quashed, and the detenu must be released if not required in any other case. The Registry is directed to inform the prison forthwith.

Legal Doctrines & Maxims

Time imperative for consideration of representation can never be absolute or obsessive (Frances Coralie Mullin v. W.C. Khambra; AIR 1980 SC 849)
Representation received after reference to the Advisory Board must be forwarded to the Board along with the case; disposal before receipt of the Board’s report invalidates detention (K. M. Abdulla Kunhi v. Union of India; AIR 1991 SC 574)
Disposal of representation without awaiting the Board’s report can invalidate the detention order (Golam Biswas v. Union of India; (2015) 16 SCC 177)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Ext.P3, a representation against detention filed after the reference to the Advisory Board but before its report, could not be disposed of by the Government prior to receipt of the Board’s report. Citing the constitutional bench decisions in K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, and Frances Coralie Mullin, the petition asserts that representations post-reference must await the Board’s report. Therefore Ext.P1 detention, and Ext.P6 (the confirmation), which relied on such a disposal, are unsustainable; the petitioner seeks quashing of Ext.P1 and Ext.P6 and a direction to release the detenu.

Contentions of Respondents

The document does not provide a detailed enumeration of the respondents’ arguments. It is evident, however, that the respondents defended the detention orders during the hearing, with the Government having disposed of Ext.P3 on 19.01.2019 and the Board’s report arriving on 21.01.2019, but the High Court ultimately found this action improper in light of binding jurisprudence.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Frances Coralie Mullin v. W. C. Khambra and others	AIR 1980 SC 849	Positive	QuotED with agreement as authority for the time-necessary consideration of representations; supports the principle that timing of consideration is conditional.
K. M. Abdulla Kunhi v. Union of India and others	AIR 1991 SC 574	Positive	Held that a representation received after reference to the Advisory Board cannot be considered before the Board’s report; used as controlling precedent.
Golam Biswas v. Union of India and another	(2015) 16 SCC 177	Positive	Held that disposing of such representations without awaiting the Board’s report would invalidate detention orders.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** **WP(Crl.).No.251 OF 2019** ## **PETITIONER:** **NABEESATH, AGED 46 YEARS W/O. THANGAL KUNJU, H.NO.TC 39/1832, KARIMADAM COLONY, CHALA, MANAKAD VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.C.RAJENDRAN SRI.B.K.GOPALAKRISHNAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME DEPARTMENT), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DISTRICT COLLECTOR/DISTRICT MAGISTRATE, THIRUVANANTHAPURAM DISTRICT, THIRUVANANTHAPURAM-695 001.** - **3 DEPUTY POLICE COMMISSIONER (LAW AND ORDER), THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695 001.** - **4 SUB INSPECTOR OF POLICE, FORT POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695 001.** **WP(Crl.) No.251 OF 2019** **2** **5 SUPERINTENDENT OF POLICE, CENTRAL PRISON, VIYOOR, THRISSUR-680 010.** **BY ADDL.DIRECTOR GENERAL OF PROSECUTION BY PUBLIC PROSECUTOR SRI. K.A ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(Crl.) No.251 OF 2019** **3** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 22[nd] day of August, 2019**_ ## _**Ravikumar, J.**_ This Habeas Corpus Writ Petition _in re_ one Shanavas, aged 22 years, S/o.Thangal Kunju, residing at House No.TC 39/1832, Karimadam Colony, Chala, Manakad Village, Thiruvananthapuram District, is moved by his mother. In the matter of his preventive detention, Ext.P1 order was passed on 07.12.2018 and the same was executed on 17.12.2018. The case of the detenu was referred to the Advisory Board on 03.01.2019. In accordance with the statutory mandate, it was considered by the Board and its opinion was forwarded to the Government. The same was received by the Government on 21.01.2019. Ext.P1 order **WP(Crl.) No.251 OF 2019** **4** was confirmed by the Government as per Ext.P6 order dated 31.01.2019. In fact, after the reference of the case to the Advisory Board, Government received Ext.P3 representation dated 04.01.2019 filed by the detenu. Despite the fact that the case of the detenu was referred to the Advisory Board on 03.01.2019 and it was pending consideration, Government considered and disposed of Ext.P3 representation as per Ext.P4, order dated 19.01.2019. Evidently, as per Ext.P4, the said representation filed against Ext.P1 was rejected. Obviously, the report of the Advisory Board was received by the Government only thereafter, to be precise, only on 21.01.2019. As already noticed, thereupon Ext.P1 was confirmed as per Ext.P6 order on 31.01.2019. It is in the said circumstances that narrating all the aforesaid aspects, this writ petition has been filed seeking issuance of the writ of Habeas Corpus commanding the respondent to produce the detenu before this Court and to quash Ext.P1 order of detention which was approved and confirmed by the Government and also to set the detenu at liberty. **WP(Crl.) No.251 OF 2019** **5** 2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondents. 3. To mount challenge against Exts.P1 and P6, various contentions have been raised. We firstly consider the question, whether a representation filed by the detenu against the order of detention before the Government, received after reference of the case of the detenu concerned to the Advisory Board, could be taken up and disposed of by the Government without waiting for the report of the Advisory Board? The said question is no longer _res integra_ in the light of the decision of a Constitutional Bench of the Apex Court in _**K.M.Abdulla Kunhi and B.L. Abdul Khader v. Union of India and others**_ _[AIR 1991 SC 574]._ For the purpose of answering the aforesaid question, paragraph 16 of the said decision is relevant. It is a quotation, with agreement, from its earlier decision in _**Frances Coralie Mullin v. W.C. Khambra and others** [AIR1980 SC 849]._ It reads thus:- **WP(Crl.) No.251 OF 2019** **6** _“The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation, the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation, the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations, there is no question of consideration of the representation before the receipt of report ” of the Advisory Board._ (Underline supplied) 4. It is thus clear that as per the decision in _**K.M.Abdulla Kunhi**_ ( _supra_ ), a representation of the detenu received after the case of the detenu in question was referred to the Advisory Board, could not be considered and disposed **WP(Crl.) No.251 OF 2019** **7** of by the Government before the receipt of the report of the Advisory Board. The consequence of consideration of any such representation dehoring the position settled in _**K.M. Abdulla Kunhi**_ ( _supra_ ) was considered by the Apex Court in _**Golam Biswas v. Union of India and another** [(2015) 16 SCC 177]._ In unambiguous term, it was held that it would invalidate the order of detention. Bearing in mind the question, said position and the factual aspects involved in this case, we will consider the sustainability of Exts.P1 and P6 orders. In this case, the representation was submitted admittedly after the case of the detenu was referred to the Advisory Board. The case of the detenu was referred to the Advisory Board on 03.01.2019 and Ext.P3 representation against Ext.P1 order was filed before the Government only on 04.01.2019. The learned Public Prosecutor would submit that it was, in fact, received by the government only on 11.01.2019. Whatever that be, the fact is that the representation was filed and received only after the case of the detenu was referred to the Advisory Board and while it **WP(Crl.) No.251 OF 2019** **8** was pending before the Board. The Advisory Board gave its report and the same was received by the Government only on 21.01.2019. Thus, Ext.P3 representation was disposed of by the government before the receipt of the report from the Advisory Board in regard to the case of the detenu. Ext.P3 was disposed of rather rejected as per Ext.P4 dated 19.01.2019. Ext.P6 order of confirmation was passed on 31.01.2019. In the light of the decision of the Apex Court in _**K.M.Abdulla Kunhi**_ ( _supra_ ), we have no hesitation to hold that the representation received after reference to the case of the detenu to the Advisory Board was considered and rejected by the government without waiting for the report of the Advisory Board and therefore, the said action invalidated Ext.P1. In such circumstances, the order of confirmation, viz. Ext.P6, also cannot be sustained. In view of the said position, it is absolutely unnecessary to consider the other contentions. In the said circumstances, this Writ Petition (Crl.) is allowed and Exts.P1 and P6 are quashed. In case the detention of the detenu in question, viz. Shanavas, is not **WP(Crl.) No.251 OF 2019** **9** 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 Viyyur Central Prison. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **N. NAGARESH, JUDGE** aks/22.08.2019 **WP(Crl.) No.251 OF 2019** **10** ## **APPENDIX** ## **PETITIONER'S EXTS:** - **P1 TRUE COPY OF THE DETENTION ORDER DT. 07.12.2018.** - **P2 TRUE COPY OF THE GROUNDS OF DETENTION DT. 07.12.2018.** - **P3 TRUE COPY OF THE REPRESENTATION DT.4.1.2019.** - **P4 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DISPOSING THE REPRESENTATION DT. 19.1.2019.** **P5 TRUE COPY OF THE ORDER OF APPROVAL ISSUED BY THE 1ST RESPONDENT DT. 7.3.2019.** **P6 TRUE COPY OF THE ORDER DT. 31.1.2019.**