High Court of KeralaDivision BenchWrit petition dismissed; detention order upheld...

Ramseena Anas v. State of Kerala & Others

Case / Petition Number:W.P.(Crl.) No.278 of 2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Vinod Chandran
  • M.R. Anitha
Judgment Date
2021-01-27
Court Decision / Holding
Writ petition dismissed; detention order, Advisory Board decision, and Government approval sustained; the detenu to remain in preventive detention. Costs awarded against petitioner.
Final Disposition
Writ petition dismissed; detention order upheld; Government and Advisory Board decisions sustained; costs awarded against petitioner.

Parties to the Case

Appellants / Petitioners

  • Ramseena Anas

Respondents

  • State of Kerala represented by Additional Chief Secretary (Home)
  • District Magistrate/District Collector, Ernakulam
  • District Police Chief, Ernakulam Rural
  • Station House Officer, Perumbavoor Police Station
  • Superintendent, Central Prison, Viyyur
  • Superintendent, Central Prison, Kannur
  • Addl. DGP Sureshbabu Thomas with GP K.A. Anas

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv. C. Rajendran
  • • Adv. R.S. Sreevidya

Counsels for Respondents

  • • Adv. K.A. Anas (Government Pleader)

Case Synopsis & Summary

The Kerala High Court heard W.P.(Crl.) No.278 of 2020 challenging the preventive detention of the petitioner's husband under KAAPA 2007. The detention order dated 03.09.2020 was confirmed by the Advisory Board and approved by the Government, and the petitioner challenges procedural irregularities and alleged delays. The petition contends that forwarding the order to the Government on 04.09.2020, and the 6½ months’ gap until detention, violated Section 3(3) KAAPA, especially since detention authority powers extend to a finite period. It is argued that the detenu was in judicial custody and arrested after investigation, with the Government’s approval dated 28.09.2020, and that the last prejudicial act occurred on 14.02.2020 in Crime No. 1073/2015 and later acts. The petitioner also alleges that multiple grounds (nine out of eleven) were used from earlier grounds, which had been set aside by Ext.P20, and that illegible copies of documents and the timing of the representation before the Government/CAB undermined the detenu’s rights. Citing Ponnappan, Ibrahim Bachu Bafan, Rekha, Golam Biswas, Frances Mullin, Jayanarayan Sukul, Vishnuja and KM Abdulla Kunhi, the petitioner seeks invalidation of the order. The Respondents contend timely forwarding (04.09.2020), arrest (09.09.2020), and 28.09.2020 approval, with 8 public holidays factoring into the timeline, and argue that the detention grounds remain valid, even if some procedural aspects are contested. The Court ultimately dismisses the petition, upholding the detention order along with the Government and Advisory Board conclusions, and orders costs against the petitioner.

Provisions of Law Cited

Section 3(3), KAAPA (Kerala Anti-Social Activities (Prevention) Act, 2007)Section 7(2), KAAPASection 7(4), KAAPASection 13(2), KAAPAArticle 22(5) of the Constitution of IndiaKAAPA 2007Section 2(t) KAAPA

Legal Doctrines & Maxims

  • We agree: (1) the Detaining Authority must provide detenu an early opportunity to make a representation; (2) the authority must consider representation as soon as possible; (3) representation must be forwarded to the Advisory Board before its report; (4) consideration of representation must be independent of Board proceedings (Frances Coralie Mullin v. WC Khambra)
  • Time-imperative cannot be absolute (Golam Biswas)
  • Grounds for detention must be individually assessed and not abused by repetitious grounds (Ibrahim Bachu Bafan discussions)
  • Detention grounds persist even if a prior order is set aside, unless infirmities taint the process (general KAAPA principles)

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioner challenges the detention on procedural irregularities: delay in forwarding to Government beyond Section 3(3) KAAPA; last prejudicial act was not proximate to detention; detenu was in judicial custody; reliance on nine grounds from an earlier order; illegible document copies; representation to Government and Advisory Board disposed of on the same day; failure to consider bail orders; and the argument that the earlier detention order was set aside (Ext.P20) and cannot be revived by grounding the present detention on the same material. The petitioner cites Ponnappan N.N., Ibrahim Bach Bafan, Rekha, Golam Biswas, Frances Mullin, Jayanarayan Sukul and KM Abdulla Kunhi to urge due process protections and timely consideration.

Contentions of Respondents

Respondents defend the detention as procedurally proper: the detention order was forwarded to the Government on 04.09.2020; arrest on 09.09.2020; Government approval on 28.09.2020, with eight public holidays; the last prejudicial act was within a reasonable window; the grounds constitute three qualifying acts within KAAPA’s seven-year window; illegible copies do not prejudice the case; the representation timeline complied with statutory requirements; the earlier order (Ext.P20) being set aside does not automatically vitiate the present detention since new grounds were added (Crime No. 155/2020, 1073/2015, 259/2018).

Cited Precedents (8)

Case NameCitationTreatmentExplanation
Ponnappan N.N. v. State of Kerala & Others2018 (5) KHC 210DistinguishedCited to illustrate delay considerations; court distinguishes the present 6½ months delay from the 5½ months discussed in Ponnappan, noting the present circumstances are different and that delay is not justified as normal office work.
Ibrahim Bach Bafan & Another v. State of Gujarat & Others(1985) 2 SCC 24DistinguishedHeld that Section 13(2) cannot be used to pass a fresh order on the same grounds after a detention order is quashed; considered not applicable to the present case, where new grounds were added.
Golam Biswas v. Union of India & Another(2015) 16 SCC 177PositivePrinciple that time-pressures in representation need not be absolute; expediency at every stage is essential, but not an obsessive timetable.
Rekha v. State of Tamil Nadu(2011) 5 SCC 244Partly Overruled / LimitedCited for discussion on bail considerations; KAAPA provisions and other grounds permit upholding detention even if bail orders were not considered, limiting Rekha’s imperative.
Frances Coralie Mullin v. WC Khambra(1980) 2 SCC 275PositiveConstitution Bench decision establishing broad time-framework principles for Detaining Authority’s consideration of representations.
Jayanarayan Sukul v. State of West Bengal(1970) 1 SCC 219PositiveConstitution Bench principles on timely and independent consideration of representations, shaping the due-process framework.
Vishnuja v. State of Kerala(2018) 1 KHC 933DistinguishedEarlier detention orders set aside do not automatically invalidate all grounds; distinctions made with respect to present detention grounds.
K. M. Abdulla Kunhi(1991) 1 SCC 476PositiveConstitutional framing of government’s obligation to forward pending representations to Advisory Board; harmonized with other principles.

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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 K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 27TH DAY OF JANUARY 2021 / 7TH MAGHA, 1942** **WP(Crl.).No.278 OF 2020** ## **PETITIONER:** **RAMSEENA ANAS, AGED 33 YEARS, W/O.ANAS, PUTHAPURA HOUSE, NEDUMTHODU, MUDIKKAL P.O., ERNAKULAM DISTRICT.** **BY ADVS. SRI.C.RAJENDRAN SMT.R.S.SREEVIDYA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY (HOME), SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 DISTRICT MAGISTRATE/DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM-682 030.** - **3 THE DISTRICT POLICE CHIEF, ERNAKULAM DISTRICT (RURAL), ERNAKULAM-682 031.** - **4 THE STATION HOUSE OFFICER, PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT-683 542.** - **5 THE SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR-680 010.** - **6 THE SUPERINTENDENT, CENTRAL PRISON, KANNUR-670 001.** - **ADDL.DGP SRI.SURESHBABU THOMAS WITH GP SRI.K.A.ANAS** **THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21-01-2021, THE COURT ON 27-01-2021 DELIVERED THE FOLLOWING:** W.P.(Crl.) No.278 of 2020 2 ## **JUDGMENT** **Dated this the 27[th] day of January, 2021** ## **K. Vinod Chandran, J.** **The writ petition is filed challenging the preventive detention of the husband of the petitioner. The Advisory Board confirmed the detention order produced as Ext.P1 and so did the Government. The challenge is on procedural irregularities, on which learned Counsel Sri.C. Rajendran argued for the petitioner and learned Government Pleader Sri.K.A.Anas argued in defence of the State.** **2. According to the petitioner, though the detention order was passed on 03.09.2020, it was not forwarded forthwith to the Government, which is the mandate under Section 3(3) of the Kerala Anti-Social Activities (Prevention) Act, 2007 [for brevity, 'the KAAPA']. It is then argued that the order itself was passed with 6½ months' delay, as occasioned from the last prejudicial act alleged. This vitiates the order especially when the Detaining Authority had the power only to impose preventive detention for a period of** W.P.(Crl.) No.278 of 2020 3 **six months. Reliance is placed on** _**Ponnappan N.N. v. State of Kerala & Others [2018 (5) KHC 210]**_ **. Not only was the live link snapped, but the detenu also was in judicial custody when the order was passed. The detenu was arrested from the prison where he was in judicial custody. The approval by the Government, after arrest made on 09.09.2020 was issued only on 28.09.2020, beyond the statutory period prescribed of 12 days.** **3. Further it is contended that the acts alleged are not sufficient to categorise the detenu as a “known rowdy”. Though eleven crimes were projected by the Sponsoring Authority and considered by the Detaining Authority, only two could have been raised as valid grounds. The nine other crimes spoken of in the order were used for a similar detention order earlier, which was set aside by Ext.P20 judgment of this Court. In that circumstance, no avail could be made of the provisions under Section 13(2) of the KAAPA, as has been held in** _**Ibrahim Bachu Bafan & Another v. State of Gujarat & Others [(1985) 2 SCC 24].**_ **4. It is vehemently argued that the detenu, by two procedural irregularities, was denied of an effective opportunity to make a representation** W.P.(Crl.) No.278 of 2020 4 **against the detention order. The first of these is the supply of illegible and unreadable copies, which are specifically pointed out from the records. Then, the representation filed before the Government was rejected on the same day when the case was sent to the Advisory Board, vitiating the detention itself, as held in** _**Golam Biswas v. Union of India & Another [2015 (16) SCC 177]**_ **. It is then argued that bail orders in various crimes were not perused by the Detaining Authority nor supplied to the detenu. Hence the detention order is vitiated for reason of the Detaining Authority having not applied its mind as to whether the conditions imposed by the Court were sufficient to deter the detenu from commission of any other offences. The detenu was also prevented from raising such issues before the Advisory Board and the Government, since the bail orders and conditions imposed therein were not known to him. Reliance was placed on** _**Rekha v. State of Tamil Nadu [(2011) 5 SCC 244]**_ **to contend that when the detenu was under judicial custody, the Detaining Authority ought to have also considered the possibility of bail being granted, in which event alone there was a warrant for preventive detention; if at all it could be passed. On the above contentions, it is argued that the** W.P.(Crl.) No.278 of 2020 5 **detention order be set aside and detenu released from prison.** **5. Learned Government Pleader vehemently denied the procedural irregularities alleged. It is pointed out from the records that the detention order was forwarded to the Government on the very next day, ie. 04.09.2020. As to the delay in passing the detention order, it is submitted that though the prejudicial act leading to registration of crime was earlier, the detenu was arrayed among the accused only after investigation and arrested much later. After arrest, the detenu was in judicial custody and after collecting the details, the Sponsoring Authority had made a recommendation. On the recommendation made, the Detaining Authority raised a query regarding the bail applications filed in the crimes for which the detenu was placed in judicial custody. The delay, if at all caused, was only due to these circumstances.** **6. It is pointed out that the mere fact that an earlier detention order was set aside by the High Court would not fetter the Detaining Authority or the Sponsoring Authority from relying on the same grounds, if there are any additional prejudicial acts, subsequently or later revealed. When the** W.P.(Crl.) No.278 of 2020 6 **earlier detention order is set aside as held in** _**Vishnuja v. State of Kerala [2018 1 KHC 933]**_ **, the detention order becomes invalid. It does not necessarily invalidate the grounds alleged in the detention order, unless there is an interference caused to the grounds itself. It is pointed out that the earlier detention order was set aside as is seen from Ext.P20, because the representation filed by the detenu before the Government was rejected, when the matter was pending before the Advisory Board. Here, the pending representation was disposed of and the matter referred to the Advisory Board, since otherwise there would be a contention raised that the Government delayed consideration of the representation filed before it. It is also pointed out that the appellant had first made a representation to the Government and then to the Advisory Board. The Government had, after rejection of the representation filed before it, forwarded the same also to the Advisory Board. The Advisory Board had considered both representations, that filed before it and the Government, while affirming the detention order.** **7. Insofar as the illegible copies of documents, as pointed out by the learned Counsel for** W.P.(Crl.) No.278 of 2020 7 **the respondent, it is pointed out that Section 7(2) of KAAPA only requires supply of copies of relevant documents 'as far as practicable'. It is also pointed out from sub-section (4) that if at all the copies supplied with reference to an allegation raised is not legible, then only that ground could be interfered with. If the order is sustainable on the other grounds, the detention order has to be upheld. As far as the approval, it is pointed out that the stipulation of 12 days excludes public holidays even as per the statute. The public holidays due to the pandemic situation included all Saturdays and the approval was passed on the 11[th] day. With respect to the contention of the bail orders not being produced or perused, it is again argued on the strength of sub-section (4) of Section 7 that the detention order could be sustained even if the said crimes are not taken into account. Moreover, it is pointed out that the bail orders were obtained by the detenu and hence he cannot feign ignorance of the conditions imposed; which he was obliged to obey. The detention order, according to the learned Government Pleader, does not suffer from any illegality, irregularity or defect. It requires to be upheld and the writ petition rejected.** W.P.(Crl.) No.278 of 2020 8 **8. The grounds regarding forthwith reporting to the Government and the time in which approval was granted after the detention is made, can be disposed of without much ado. The learned Government Pleader has produced the files before us, which indicates that the detention order dated 03.09.2020 was dispatched on 04.09.2020 to both the Director General of Police as also the Addl.Chief Secretary to Government, Home Department. As for the approval, arrest was made on 09.09.2020 and the approval by the Government was on 28.09.2020. In between, there were eight public holidays; the 10[th] , 12[th] , 13[th] , 19[th] to 21[st] , 26[th] and 27[th] . Hence including the date on which the arrest was made, the approval was granted on the 12[th] day.** **9. The next ground is with respect to 6½ months' delay caused in passing the detention order. In** _**Ponnappan**_ **[supra] where the delay was caused of 5½ months, explanation, as seen from the detention order, was that it is normal office procedure. It was emphasised that when an order of preventive detention is passed, without any conviction recorded and merely on the basis of reported crimes, it cannot be treated as normal office work, since it interferes with and restricts the freedom of an individual who has not** W.P.(Crl.) No.278 of 2020 9 **yet been found guilty of charges raised against him by a competent Court. In the present detention order, the circumstances are otherwise. After the earlier order was set aside, on 17.12.2019, there was an FIR registered as Crime No.155 of 2020 in the Aluva East Police Station; which is the last prejudicial act. However the detenu was not arrayed as an accused at the time of registration of FIR. Only on investigation, the detenu was arrayed as an accused and arrested on 10.05.2020. On arrest, he was remanded to judicial custody. Yet again it was divulged that the 5[th] accused arrayed in Crime No.1073/2015, whose address was not revealed at the time of registration of the crime; was the detenu, upon which a formal arrest was recorded, on 23.05.2020, of the detenu who was then in judicial custody. It was while the detenu was thus continuing in judicial custody that the District Police Chief (Rural) proposed preventive detention by communication dated 10.07.2020 [as available in the files]. Since the detenu was in custody there was no urgency and the time taken is justified in collecting the entire details with respect to the detenu.** **10. On consideration of the recommendation** **of the District Police Chief, as is evident from** W.P.(Crl.) No.278 of 2020 10 **Ext.P1, the Detaining Authority requested for details regarding the proceedings initiated by the detenu for bail. The Detaining Authority had specifically required the details to be furnished with respect to Crime Nos.155 of 2020 and 1073 of 2015. The District Police Chief had supplied details by communication dated 18.08.2020. Though the bail applications submitted were rejected by Court, detenu was recommended to be kept under preventive detention since there was every possibility of he being released on bail. The detenue, on earlier occasions, when released on bail continued undeterred with his criminal activities. It was pursuant to this that the Detaining Authority passed the order dated 03.09.2020. Hence there is no snapping of the live link from the last prejudicial act and within one and a half month of his last arrest, there was a recommendation made for preventive detention by the Sponsoring Authority, on which a query was made by the Detaining Authority and immediately on getting the response, the detention order was passed. From these facts it is crystal clear that there is no delay occasioned in passing the detention order.** **11. The next ground is with respect to there being no sufficient grounds available for preventive** W.P.(Crl.) No.278 of 2020 11 **detention. Especially the 9 out of 11 cases alleged being those raised for detaining the detenu earlier; which order stood set aside by the judgment of this Court produced as Ext.P20. None of the cases against the detenu had reached the trial stage. We emphasize that the grounds for the present detention order were only three and not eleven crimes. The detention was by reason of three separate instances having occurred in the past seven years, where the detenu was found on investigation by a competent police officer to have committed offences under Section 2(t).** _**Ibrahim Bach Bafan**_ **[supra] was a case in which detention was made by an order, which was revoked, while the challenge against it was pending before the Gujarat High Court. However, on the very same grounds on which the order was revoked, yet another order of detention was passed, which was also challenged in a writ petition. The High Court allowed the writ petition finding the order to be violative of Article 22(5) of the Constitution of India and directed the detenu to be set at liberty. A few days later yet another detention order was passed, which order was challenged before the Hon'ble Supreme Court. The State defended the order on the ground that when a revocation is made under Section 11, there was no** W.P.(Crl.) No.278 of 2020 12 **bar in making a fresh order against the same person. The Hon'ble Supreme Court held that when the High Court exercises its jurisdiction under Article 226 of the Constitution it does not make an order of revocation but nullifies it. It was held that on the same grounds there could not be a fresh order passed. 12. As (Section 11) in the 'Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974'; in the KAAPA Act, Section 13 provides for revocation. Under sub-section (2) power is conferred on the Government to pass a fresh order, if the circumstances in Clauses (i) to (iii) of Section 13(2) arise. As held in** _**Ibrahim Bachu Bafan**_ **, Section 13 is not applicable to the setting aside of a detention order by the High Court under Article 226. It does not regulate, fetter or guide the High Court in exercising jurisdiction under Article 226 and the State or its officers cannot resort to the provisions of Section 13 to pass a fresh order on the same grounds. We have to observe that the High court in** _**Ibrahim Bachu Bafan**_ **quashed the order by reason of violation of Article 22 (5) of the Constitution. For the procedural defect of either non-communication of the grounds on which the order has been made or for not according the earliest opportunity to make a** W.P.(Crl.) No.278 of 2020 13 **representation. Such a defect cannot be cured by issuing a further order and making the arrest in compliance of Article 22(5). This equally applies to the defect pointed out in Ext. P20 judgment of this Court, which set aside the earlier order.** **13. On a reading of the two detention orders, the earlier one as available in the Judge's papers of WP(Crl.) No.385 of 2019 [which we called for] we do not find the present order to be vitiated on that ground. Admittedly, nine cases were projected in the earlier detention order and if the present detention order was on the very same grounds,** _**Ibrahim Bachu Bafan**_ **squarely applies. At the earlier instance also the defect was insofar as there being no effective consideration of the representation; which defect cannot be cured by a second order. In the present case, after the detenu was released pursuant to Ext.P20 dated 17.12.2019 he had involved himself in another crime on 14.02.2020, pursuant to which, Crime No.155 of 2020 was registered. Originally the detenu was not an accused there. His involvement was revealed only on investigation and he was arrested on 10.05.2020. As we have already noticed though the last prejudicial act was on 14.02.2020, the involvement of the detenu came to the knowledge of** W.P.(Crl.) No.278 of 2020 14 **the Police only much later and he was arrested on 10.05.2020.** **14. In this context, we specifically refer to the grounds taken by the Sponsoring Authority for the purpose of preventive detention, for a second time. The first ground as seen from Ext.P1 order, under the heading 'Grounds on which the District Police Chief requires action against the accused', is Crime No.1073 of 2015 registered on 26.07.2015, within the seven year period as provided under KAAPA, but not part of the grounds in the earlier order. In fact, though the FIR was registered earlier, the 5[th] accused was not apprehended for reason of his address not having been divulged. It was later revealed that the detenu was the 5[th] accused in the said case and his arrest was made while in judicial custody pursuant to arrest in Crime No.155 of 2020, which crime was committed after Ext.P20 judgment of this Court. The second ground was Crime No.259 of 2018, which was one of the grounds in the earlier order. There, the allegation was that a friend of the accused and resident of the same locality; was enticed to go with the accused to Karnataka, where he was murdered, as preplanned from within the local limits. In addition, the third ground was Crime** W.P.(Crl.) No.278 of 2020 15 **No.155 of 2020, which was committed after he was released from preventive detention. Hence it cannot be said that the instant order of detention was on the very same grounds.** **15. The order of detention was specifically for reason of the commission of an offence after the earlier detention order was set aside. As also the detection of the involvement in an offence of the year 2015, after Ext.P20 judgment of this Court. These two instances were coupled with one of the crimes earlier committed and charged, which was also one of the grounds in the earlier order of detention. It cannot at all be said that the further detention was on the same grounds. As was pointed out, one out of the three crimes was earlier alleged as a ground in the earlier order. In this context, we cannot but observe that the grounds on which detention is made, ie. the prejudicial act of commission of an offence, as revealed in an investigation or an enquiry, does not get erased or effaced on the High Court setting aside an order of preventive detention. In fact, here it is the further commission of an offence and the detection of an offence earlier committed, coupled with one of the grounds raised in the earlier order; which brought forth the present recommendation and** W.P.(Crl.) No.278 of 2020 16 **detention. We do not find** _**Ibraham Bachu Bafan**_ **has any application. There are sufficient grounds to find the detention to be sustainable.** **16. The next ground urged is the representation being disposed of on the same day on which the case was referred to the Advisory Board.** _**Golam Biswas**_ **[supra] was a case in which the Government rejected the representation filed by the detenu when the matter was pending before the Advisory Board. The learned judges referred to** _**Frances Coralie Mullin vs. WC Khambra [1980 (2) SCC 275],**_ **which relied on the Constitution Bench decision in** _**Jayanarayan Sukul v. State of West Bengal [1970 (1) SCC 219], which**_ **culled out four broad principles:** **“** _**We agree:(1) the Detaining Authority must provide the detenu a very early opportunity to make a representation, (2) the Detaining Authority must consider the representation as soon as possible, and this, preferably, must be before the representation is forwarded to the Advisory Board, (3) the representation must be forwarded to the Advisory Board before the Board makes its report, and (4) the consideration by the Detaining Authority of the representation must be entirely independent of the hearing by the Board or its report, expedition being essential at every stage” (sic).**_ **17** _**. Golam Biswas**_ **held that the time-imperative cannot be absolute and obsessive and if a** W.P.(Crl.) No.278 of 2020 17 **representation is received by an appropriate authority and there is no time to dispose of the same, having regard to the time frame fixed by the act for reference of the matter to the Advisory Board, the representation must also be forwarded to the Advisory Board along with records of the detenue. It was noticed that the requirement was insisted upon especially since, on the Advisory Board holding the order to be invalid, the Government has no option but to release the detenu, whereas, on the Advisory Board upholding the order of detention, it would still be open to the Government to release the detenu. The requirement was held to be:** _**“... The fact that the opinion of the Advisory Board against continuance of the order of detention is final vis-à-vis the appropriate Government, in our opinion, is the motivating imperative for requiring the appropriate Government to forward the pending representation to the Advisory Board so as to enable it to traverse the entire panorama of grounds taken against the detention order for an effective, timely and meaningful consideration of the case of the detenu. This requirement as has been essentially recognised and mandated by two decisions of the Constitution Bench of this Court, does not, in any way, undermine the appropriate Government’s authority to consider and dispose of such representation of any detenu under the preventive detention law. The right of the Central Government or for that matter**_ W.P.(Crl.) No.278 of 2020 18 _**any appropriate Government to consider and dispose of a representation of a detenu, preventively detained, has to be harmoniously construed with the obligation cast on it to forward a pending representation to the Advisory Board as has been consistently held in Jayanarayan Sukul 1970(1)SCC219 and K.M. ” Abdulla Kunhi 1991(1)SCC476.**_ **[** _**underlining by us for emphasis**_ **]** **18. With the above principles in mind we look at the manner in which the consideration of the representation was carried out by the appropriate Government. We see from the records that after supply of relevant documents along with the detention order, the detenu had made a representation to the Government on 14.09.2020. A representation was made to the Advisory Board much later on 19.10.2020. The reference by the appropriate Government to the Advisory Board was on 30.09.2020; after about 16 days from the date of representation to the Government. As rightly contended by the learned Senior Government Pleader, if the representation to the Government has not been considered, there would have been a ground raised of the Government having not timely considered the representation against the preventive detention; which right the Constitutional Courts have zealously guarded as an unimpeachable right of the detenu. It** W.P.(Crl.) No.278 of 2020 19 **is also pertinent and relevant that despite rejection of the representation; the same was forwarded to the Advisory Board which had considered the facts and circumstances leading to the detention order as also the representations before itself and the Government, while affirming the detention caused.** **19. The illegible and unreadable copies are specifically pointed out from the memorandum of writ petition produced as Ext.P9, Ext.P11 and Ext. P12. Ext.P9 is the final report in relation to Crime No.1318/2016. Ext.P11 is the FI Statement and Ext.P12 is the order in Crl.M.C. No.1718 of 2018 filed in Crime No.1006 of 2016. Both these crimes, though part of the earlier order, is not a ground specifically raised in the instant order; despite it having been mentioned in the instant order too. The prejudicial acts, leading to offences, which were the grounds for the present detention were Crime Nos:1073 of 2015, 259 of 2018 and 155 of 2020, registered respectively in the North Paravur [Kerala], Uppinangadi (State Of Karnataka) and Aluva East [Kerala] Police Stations. We do not find any reason to interfere with the detention order on the ground raised of an illegible and unreadable copy having been supplied, since the said documents do not refer** W.P.(Crl.) No.278 of 2020 20 **to grounds in support of the instant order and there is no prejudice caused to the detenu.** **20. One another ground raised is with respect to all the bail orders and the conditions therein having not been considered by the Detaining Authority. The petitioner also relies on** _**Rekha**_ **[supra]. The absence pointed out from Ext.P1(a), Index of Details of Records, are item Nos.4 & 6 with reference to Crime No.1066 of 2016 and Crime No.1318 of 2016, both of Perumbavur Police Station. Both these crimes again were not among the three crimes specifically raised as grounds in the instant order of detention. On the last ground of the detention order being passed, when the accused was in judicial custody, there are sufficient reasons as seen from the detention order itself. There, the Detaining Authority had specifically requested for the details of bail applications filed in the crimes, under which the detenu was subjected to judicial custody. The Sponsoring Authority had specifically reported that the bail applications were rejected by the Sessions Court. But still the Sponsoring Authority had pointed out the various instances when the detenu had repeatedly committed offences after release from judicial custody. As a matter of fact, rejection of** W.P.(Crl.) No.278 of 2020 21 **bail was challenged before the High Court and the detenu was granted bail by this High Court on 06.01.2021, after the detention was made. The Detaining Authority had considered the recommendation and on the specific ground of the repeated commission of offence, even when released on bail, the detention order was passed with specific reference to Crime No.155 of 2020, which was committed after the earlier preventive detention order was set aside by the High Court. We find no reason to interfere with the detention order, order of the Advisory Board or the Government and affirm the same. We reject the writ petition, leaving the parties to suffer the cost.** ## **Sd/-** **K. VINOD CHANDRAN, Judge.** ## **Sd/-** **M.R. ANITHA, Judge.** **sp/uu/22/01/2021** **//True Copy//** **P.A. To Judge** 22 W.P.(Crl.) No.278 of 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE PHOTOCOPY OF THE DETENTION ORDER BEARING NO.DCEKM/5978/2020/M7 IS DATED 03.09.2020.** **EXHIBIT P1 A A TRUE PHOTOCOPY OF THE INDEX OF THE RECORDS.** - **EXHIBIT P2 A TRUE PHOTOCOPY OF THE FIR NO.976/2016 OF PERUMPBAVOOR POLICE STATION 23.02.2016.** - **EXHIBIT P3 A TRUE PHOTOCOPY OF THE FIS IN CRIME NO.,976/2016 OF PERUMBAVOOR.** - **EXHIBIT P4 A TRUE PHOTOCOPY OF THE FINAL REPORT IN FIR NO.976/2016 OF PERUMBAVOOR.** - **EXHIBIT P5 A TRUE PHOTOCOPY OF THE RELEVANT PAGE IN THE FINAL REPORT REGARDING THE DETENUE IN CRIME NO.1066/2016.** - **EXHIBIT P6 A TRUE PHOTOCOPY OF THE FIR ALONG WITH FIS IN CRIME NO.1284/2016 OF PERUMBAVOOR POLICE STATION.** - **EXHIBIT P7 A TRUE PHOTOCOPY OF THE RELEVANT PAGE REGARDING THE DETENU IN THE FINAL REPORT IN CRIME NO.1284/2016 OF PERUMBAVOOR POLICE STATION.** - **EXHIBIT P8 A TRUE PHOTOCOPY OF THE BAIL MEMO IN CRIME NO.1318/2018 OF PERUMBAVOOR POLICE STATION.** - **EXHIBIT P9 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF NON-READABLE FINAL REPORT IN CRIME NO.1318/2018 PERUMBAVOOR POLICE STATION.** 23 W.P.(Crl.) No.278 of 2020 - **EXHIBIT P10 A TRUE PHOTOCOPY OF THE ORDER IN CRL.MC NO.1168 OF ADDL.DISTRICT AND SESSIONS JUDGE MANGLORE DATED 14.23.2018.** - **EXHIBIT P11** - **A TRUE COPY OF TWO PAGES OF NON-READABLE COPY SERVED ON THE DETENU.** **EXHIBIT P12** - **A TRUE PHOTOCOPY OF THE NON READABLE BAIL ORDER IN CRL.MC NO.1718/2018 SESSIONS COURT, THIRUVANANTHAPURAM.** - **EXHIBIT P13 A TRUE PHOTOCOPY OF THE ORDER IN CMP NO.3092/2019 OF THE JDMC 1, PERUMBAVOOR DATED 01.10.2019.** - **EXHIBIT P14 A TRUE PHOTOCOPY OF THE ORDER APPROVING THE DETENTION ORDER DATED 28.09.2020.** - **EXHIBIT P15 A TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED TO THE ADVISORY BOARD DATED 09.10.2020.** - **EXHIBIT P16 A TRUE PHOTOCOPY OF THE REPRESENTATION SUBMITTED BY THE DETENU TO THE GOVERNMENT DATED 14.09.2020.** - **EXHIBIT P17 A TRUE PHOTOCOPY OF THE REJECTING THE REPRESENTATION DATED 30.09.2020.** - **EXHIBIT P18 A TRUE COPY OF THE CONFIRMED THE DETENTION ORDER DTED 11.11.2020.** **EXHIBIT P19 A TRUE PHOTOCOPY OF THE DETENTION ORDER DATED 19.08.2019. EXHIBIT P20 A TRUE PHOTOCOPY OF THE JUDGMENT IN WP(CRL) 385/2019 DATED 17.12.2019 OF THIS HON'BLE COURT.**