## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN**
## **MONDAY, THE 24TH DAY OF MARCH 2014/3RD CHAITHRA, 1936**
**WP(Crl.).No. 24 of 2014 (S) ----------------------------**
## **PETITIONER(S):**
**--------------------------**
**RAMLA W/O. RASHEED, JHARIS MANSIL, VADASSERRY PADEETHATHIL PADINJATTAKKARA MURIYIL, ALAPPURATHUY THEKKETHIL THEVALAKKARA VILLAGE, KARUNAGAPPILLY, KOLLAM DISTRICT.**
**BY ADV. SRI.M.H.HANIS**
## **RESPONDENT(S):**
**----------------------------**
## **1. STATE OF KERALA**
- **REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT HOME AND VIGILANCE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN-695001.**
**2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE KOLLAM-691001.**
**3. THE CITY POLICE CHIEF KOLLAM-691001.**
**R1-R3 BY ADV. DIRECTOR GENERAL OF PROSECUTION SRI.ASAF ALI**
**THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 24-032014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**WP(Crl.).No. 24 of 2014 (S)**
**----------------------------**
## **APPENDIX**
**PETITIONER(S)' EXHIBITS -------------------------------------**
**P1. TRUE COPY OF ORDER NO. M 9-53599/13 DATED 29-10-2013 OF THE 2ND RESPONDENT ALONG WITH THE ENCLOSED RECORDS.**
**P2. TRUE COPY OF THE REPRESENTATION DATED 10-11-2013 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.**
**P3. TRUE COPY OF THE REPRESENTATION DATED 20-11-13 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN, ADVISORY BOARD, KAAPA.**
**P4. TRUE COPY OF THE ORDER BEARING NO. 106322/SS A5/2013/HOME DATED 20-1113.**
**RESPONDENT(S)' EXHIBITS NIL**
**---------------------------------------**
**//True Copy//**
**PA TO JUDGE**
**Rp**
## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. ============================== WP(Crl.) No. 24 of 2014**
## **====================**
## **Dated this the 24[th] day of March, 2014**
## **J U D G M E N T**
## Antony Dominic, J.
This writ petition is filed challenging Ext.P1, an order issued under Section 3 of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as the 'Act' for short).
2. Briefly stated, the facts of the case are that the petitioner is the mother of Haris @ Jaris, aged 29 years, who is accused in 13 criminal cases registered at the Thekkumbhagom and Chavara Police Stations of Kollam District. The offences which are alleged against him are all those falling within the categories enumerated in Section 2(t) of the Act. In such circumstances, by order dated 11/5/11, he was detained under Section 3 of the Act and he underwent detention from 2/2/2012 for a period of six months at the Central Jail, Thiruvananthapuram.
3. After his release, he was again involved in Crime Nos.606/13 and 611/13. In such circumstances, a preliminary report was made by the Sub Inspector of Police, Thekkumbhagom to the 3[rd] respondent on 4/9/13. Based on the materials that were
**W.P.(Crl.) No.24/14**
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made available, the 3[rd] respondent submitted his report under Section 3(1) of the Act to the detaining authority on 20/9/13 requesting that in view of the above, he is liable to be detained in view of the provisions contained in Section 13(2)(i) of the Act. Accordingly, the detaining authority, the 2[nd] respondent, issued Ext.P1 order dated 29/10/13 ordering detention of the detenu. Based on the detention order, he was detained on 10/11/13. His detention was approved by the Government of Kerala as provided under Section 3(3) of the Act by Ext.P4 order dated 20/11/13. By order dated 25/11/13, the Government of Kerala made reference under Section 9 to the Advisory Board constituted under Section 8 of the Act. The Advisory Board, as is seen from its report, heard the detenu and made its report, which was forwarded to the Government by its order dated 23/12/13. On receipt of the report, the Government considered the matter and issued order dated 03/1/14 confirming the detention in terms of Section 10(4) of the Act. It is in this background, the writ petition is filed.
4. We heard the learned counsel for the petitioner and the learned Director General of Prosecution who appeared for the respondents.
**W.P.(Crl.) No.24/14**
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5. The first contention raised by the learned counsel for the petitioner was that the detention order is highly belated and therefore is unconstitutional. This contention was raised on the basis that the last prejudicial activity which triggered the proceedings against the detenu was on 21/6/13 and that Ext.P1 order of detention was passed only on 29/10/13. Therefore, according to him, the detention order, which is preventive in nature, issued after a lapse of 4 months and 8 days of the last prejudicial activity, is liable to be invalidated on the ground that it is vitiated by inordinate and unexplained delay.
6. However, respondents answered this contention in para 11 of the counter affidavit filed by the 1[st] respondent, which read thus;
“ _11. The contention of the petitioner in Ground C of the petition that the detention order had no proximity to the alleged criminal act of the detenu and there was no justification for the issuance of the order of preventive detention against the detenu, is totally incorrect. In the case on hand, the last prejudicial activity of the detenu was on 21/06/2013 (Crime No.611/13 of Sasthamcotta Police Station). The charge sheet in this case has been filed on 4.09.2013. Immediately after filing the final report in the above case under section 173 of the CrPC the Sub Inspector of Police, Thekkumbhagom submitted the preliminary report for action us/ 3(1) of the_
**W.P.(Crl.) No.24/14**
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_act. Without wasting any time, the sponsoring authority i.e. the City Police Commissioner, Kollam has furnished his report to the authorized officer on 20/09/2013. The Authorised Officer after due consideration of all relevant materials, has issued the detention order on 29/10/2013 and the same was duly executed on 10/11/2013. It is submitted that the nexus between the last prejudicial activity and the detention order and its execution, was kept intact in the case on hand. The time taken by the authorities concerned at each stage of the process is only reasonable and there is no delay in the matter. Contention to the contrary is incorrect.”_
7. From the above, therefore, it is evident that though the last prejudicial activity which is the subject matter of Crime No.611/13 of Thekkumbhagom Police Station had occurred on 21/6/13, the investigating officer of the case made his preliminary report only on 4/9/13. That was the date on which on completion of the investigation, the charge sheet was filed before the concerned court. On receipt of the report, the sponsoring authority, the 3[rd] respondent, made his report under Section 3 on 20/9/13, based on which Ext.P1 order was issued. It is true that in issuing the orders of preventive detention, delay can invalidate the proceedings provided the delay is unexplained and culpable.
8. In so far as this case is concerned, delay if at all is in making the preliminary report only on 4/9/13 in respect of the last
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prejudicial activity which occurred on 21/6/13. This delay has occurred only on account of the pendency of the investigation which, in our view, cannot be said to be unexplained or culpable for the reason that the investigating officer could not have made his report in a hurry or without even a _prima facie_ satisfaction that this is a case which deserves to be taken up under the provisions of the Act. In such circumstances, we are not inclined to think that there occurred a delay which is unexplained or culpable rendering the detention of the detenu in this case unconstitutional as contended by the learned counsel.
9. The second contention raised by the learned counsel was with reference to Exts.P2 and P3, which are the representations made by the petitioner dated 10/11/13 and 20/11/13 and are addressed to the Government and the Advisory Board. In so far as Ext.P2 is concerned, the contention raised by the learned counsel for the petitioner was that though the said representation was received by the Government, no orders were passed or communicated to the petitioner. However, the files produced by the learned Director General of Prosecution show that this representation was received by the Government on
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## **W.P.(Crl.) No.24/14**
25/11/13 and the Government passed order on 29/11/13 rejecting the representation. The files also show that the order dated 29/11/13 was forwarded to the petitioner by post and the postal cover also carries the number of the order dated 29/11/13. Endorsement on the cover shows that the postal authority had made three endorsements as “ _not known_ ” and has finally returned the letter to the sender. Therefore, it is not factually correct for the petitioner now to contend that Ext.P2 representation dated 10/11/13 made by her on behalf of the detenu was not considered by the Government.
10. In so far as Ext.P3 representation dated 20/11/13 is concerned, that was addressed to the Advisory Board and it is pointed out that in the said representation, request was made that the detenu may be permitted to appoint Advocate Hanis Manakal, Manakkal Associates, Manakal Building, Thoppumpady, Kochi-5 for hearing the matter in detail and that he may be informed of the date, place and time of hearing. Counsel contended that though this representation was received by the Board, without considering the request, the Board heard the detenu and made its report. The report of the Board contained in
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the file made available by the learned Director General of Prosecution shows that the Board had received the representation. It is stated that though the detenu was permitted to be represented by an Advocate, the Advocate was not present.
11. In so far as the right to make representation by a detenu before the Advisory Board is concerned, that is governed by the provisions contained in Section 10(3) of the Act which says that a person against whom an order of detention has been made under the Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Board. This sub section is followed by a proviso conferring power on the Board to permit legal practitioners in cases deemed fit. This provision shows that though the detenu cannot claim legal representation before the Board as a matter of right, Board has the power to permit the petitioner to be represented by a legal practitioner in cases which are deemed fit by the Board itself. Therefore, in a case of detention under the Act where a detenu makes a representation for legal representation, certainly the detenu is entitled to have his report considered in accordance with Section 10(3) of the Act. However, the question as to
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whether any such order has been passed by the Board or any order has been passed on the representation was communicated to the practitioner chosen by the detenu are matters which are entirely within the knowledge of the Board and can be answered only by the Board.
12. In so far as this case is concerned, what we notice is that the Board has neither been impleaded as a party to this petition nor has the petitioner made a specific plea in this behalf in the writ petition. In this context, we also make reference to the Apex Court judgment in _**Hemlata Kantilal Shah v. State of Maharashtra**_ (AIR 1982 SC 8), where a similar situation was considered by the Apex Court in a case arising under the COFEPOSA Act. It is true as rightly contended by the learned counsel for the petitioner, in a case of habeas corpus, strict rules of pleading are inapplicable. But, that does not, in our view, absolve the petitioner from making elementary pleadings which are required to put the opposite party on notice of his contentions nor does it absolve the petitioner from impleading necessary parties to the writ petition. In such circumstances, we do not think that we will be justified in taking cognizance of this contention in
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## **W.P.(Crl.) No.24/14**
the absence of the Advisory Board in the party array and also for want of any pleadings to that effect in the writ petition.
In such circumstances, we do not find force in any of the aforesaid contentions raised and the writ petition will, therefore, stand dismissed.
Sd/- **ANTONY DOMINIC JUDGE**
Sd/- **JUDGE**
## **ANIL K. NARENDRAN**
Rp
**//True Copy//**
**PA TO JUDGE**
