Sahadevan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 1ST JUNE 2011 / 11TH JYAISHTA 1933 WP(Crl.).No. 29 of 2011(S) -------------------------------------------- PETITIONER(S): --------------------- SAHADEVAN, S/O.KUMARAN, AGED 62 YEARS, RESIDING AT BANGLAVIL HOUSE, KEEKAN VILLAGE, HOSDURG TALUK, KASARAGODE DISTRICT. BY ADV. SRI.P.M.ZIRAJ RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE ADDITIONAL CHIEF SECRETARY (HOME DEPARTMENT) KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE, KASARGODE DISTRICT-671 121. 4. THE SUPERINTENDENT OF POLICE, KASARGODE DISTRIT-671 121. 5. THE CIRCLE INSPECTOR OF POLICE, HOSDURG POLICE STATION, KASARGODE DISTRICT, PIN-671 121. 6. SUPERINTENDENT OF CENTRAL PRISON, VIYYOOR, THRISSUR-680 010. ## W.P.(CRL).NO.29 OF 2011 S 7. THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA, KOCHI-26. BY SR. GOVERNMENT PLEADER SHRI P. RAVINDRA BABU. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX IN W.P.(CRL).NO.29 OF 2011 S PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DETENTION ORDER ALONG WITH THE GROUND FOR DETENTION OF THE SON OF THE PETITIONER DATED 6.12.2010 ISSUED BY THE THIRD RESPONDENT. EXT.P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE SON OF THE PETITIONER DATED 10.1.2011 BEFORE THE FIRST RESPONDENT. EXT.P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE SON OF THE PETITIONER DATED 10.1.2011 BEFORE THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE SON OF THE PETITIONER DATED 10.1.2011 BEFORE THE SEVENTH RESPONDENT. ## RESPONDENTS' EXHIBITS: EXT.R2(A) COPY OF GOVT. LETTER NO.96786/SSA HOME DATED 04.02.2011 UNDER PROPER ACKNOWLEDGMENT ON 05.02.2011. // TRUE COPY// PS TO JUDGE ## **K.M. JOSEPH &** ## **M. L. JOSEPH FRANCIS, JJ.** **-----------------------------------------** **W.P.(CRL).NO. 29 OF 2011 S** **-----------------------------------------Dated this the 1[st] June, 2011** **JUDGMENT** ## **K.M. Joseph, J.** Petitioner seeks to quash Ext.P1. By Ext.P1, his son Shri Arun Kumar @ Arun, stands detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as the Act). 2. We heard the learned counsel for the petitioner and the learned Senior Government Pleader. The son of the petitioner was detained since 10.12.2010. The only ground raised by the learned counsel for the petitioner is that in the order of detention, the period for which the detenu was to be detained, was not mentioned and that renders the order illegal. Per contra, the learned Senior Government Pleader would point out that the Act does not contemplate the detaining authority indicating in the order the _**WP(CRL).29/2011 S**_ _**2**_ period for which the detenu is to be detained. Section 3 provides for power to detain with the Government or the authorised Officer. It reads as follows: ## _“_ _**3. Power to make orders for detaining Known**_ _**Goondas and Known Rowdies._** (1) The Government or an Officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained.”_ In fact, we notice that a Bench of this Court in the decision in Anitha Bruse v. State of Kerala (2008 (2) KLT 857) has held as follows: _“A reading of S.10(4) would show that the Government is the competent authority to fix the_ _**WP(CRL).29/2011 S**_ _**3**_ _period of detention, that too only on the basis of the positive opinion by the Advisory Board. Even if the Advisory Board recommended for the continued detention, the authority is vested with the Government to fix the period. If the Advisory Board is of opinion that there is no ground for further detention, it is mandatory for the Government to release the detenu forthwith. On a reading of S.3(3), it can be seen that the detaining authority shall forthwith report the fact to the Government and the Director General of Police, Kerala together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter from the wordings used in S.3 (3) and on a conjoint reading of sub-s.(4) of S.10, it can be seen that the absolute authority is vested with the Government to fix the period of detention and in view of S.12 of the Act only the Government can fix the period not exceeding six months from the date of detention. That being the position, the detaining authority in the present case who issued Ext.P1 order has exceeded his jurisdiction and he has no authority to fix the period of detention as six months and therefore, the same is unsustainable in law and_ _**WP(CRL).29/2011 S**_ _**4**_ _especially, it is diametrically opposed to the three months period envisaged by Art.22(4) of the Constitution of India.”_ Therefore, the view taken by the Court is that the detaining authority cannot fix the period of detention as six months. Section 12 provides for the maximum period of detention being six months from the date of detention. Section 10(4) reads as follows: ## _“_ _**10. Procedure of Advisory Board and further**_ _**action.** - (4) In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.”_ Therefore, the scheme of the Act also would tend to advance the _**WP(CRL).29/2011 S**_ _**5**_ case of the learned Senior Government Pleader that the authority under Section 3 is not expected to fix the period of detention. 3. Petitioner has not been able to establish that the Act contemplates the fixing of the period of detention by the detaining authority. There is no merit in the Writ Petition and the Writ Petition is dismissed. Sd/= **K.M. JOSEPH,** **JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE** **kbk.** **//True Copy//** **PS to Judge** # _**WP(CRL).29/2011 S 6**_