Saraswathy v. State of Kerala and The District Collector

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 16TH DAY OF JANUARY 2012/26TH POUSHA 1933 WP(Crl).No. 565 of 2011 (S) ------------------------ PETITIONER(S): ------------- SARASWATHY, TC.19/24, THIRUMALA VELIBHAGOM, THIRUVANANATHAPURAM. ## BY ADV. SRI.T.K.ANANDA KRISHNAN RESPONDENT(S): -------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, SECRETRIAT THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT COLLECTOR, DISTRICT COLLECTORATE, THIRUVANANTHAPURAM-695 001. R1 & 2 BY ADDL D.G.P.SRI.ABDUL RASHEED. THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 1601-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: WP(Crl).No. 565 of 2011 (S) ------------------------ ## A P P E N D I X ## Petitioner's Exhibits : Ext.P1 : TRUE COPY OF ORDER DT. 20.7.2011 ISSUED UNDER SECTION 3(A) OF KAAPA, 2007, BY THE 2ND RESPONDENT. Ext.P2 : TRE COPY OF THE ORDER OF APPROVAL NO.60047/SSA5/2011/HOME DT. 9.8.2011. Ext.P3 : TRUE COPY OF THE GO(RT) NO.3024/2011/HOME DT. 12.10.2011. Ext.P4 : TRUE COPY OF THE ORDER DT. 14.9.2011 IN C.C.NO.402/2011 ACQUITTING THE DETENU. Ext.P5 : TRUE COPY OF THE REPRESENTATION DT. 5.8.2011 FILED BY THE PETITIONER BEFORE THE CONCERNED AUTHORITIES. EXT.P6 : TRUE COPY OF THE REPRESENTATION PREPARED, COUNTERSIGNED BY THE SUPERINTENDENT OF CENTRAL PRISON. TGS (True copy) P.S. to Judge. **C.R.** **K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------------W.P.(Crl) No.565 of 2011 ----------------------------------------------Dated 16[th] January, 2012.** ## **J U D G M E N T** ## **K.M.Joseph, J.** The son of the petitioner stands detained under the provisions of the Kerala Anti-social Activities (Prevention) Act, 2007 (for short, 'the Act'). Ext.P1 is the order of detention dated 20.7.2011. Ext.P2 is the approval dated 9.8.2011. 2. We heard the learned counsel for the petitioner and the learned Additional Director General of Prosecutions. 3. Learned counsel for the petitioner would address the following arguments before us : In the first place, he would submit that petitioner's son was detained earlier under the Act on the basis that he was a known goonda, but now he is again detained on the basis that he is a known rowdy. Secondly, he would contend that there is delay in the matter of passing the order. Further, Ext.P4 shows that he was acquitted in one of the cases. Next, he would submit that he had actually made a representation to the Advisory Board, but that has not been considered. He would further contend that the representation, W.P.(Crl) 565/11 2 even though was forwarded with its opinion to the Government by the Advisory Board, the same has not been considered and that entitles him for release from continued custody. 4. Learned Additional D.G.P. would support the order. He would submit that there is no undue delay. He would press into service Section 13 of the Act in order to justify the order of detention. He would submit that Ext.P4 evidences only compounding of the offence and that too, more importantly, subsequent to the order. As far as the representation before the Advisory Board is concerned, he would submit that under Section 10 of the Act, the Advisory Board is obliged in law to send its opinion within the outer limit of 9 weeks from the date of detention. The outer limit was reached on 30.9.2011. The representation was given on 15.9.2011. The Advisory Board has noted that the representation filed by the detenu was sent to the concerned authorities for getting their remarks and in view of the paucity of time, the Advisory Board was justified in not considering the representation, as otherwise not sending W.P.(Crl) 565/11 3 the opinion within the time stipulated in Section 10 of the Act would have resulted in relief being granted to the detenu without basis. 5. As far as the question relating to nonconsideration of the representation by the Government, he would submit that the detenu was appraised of his right in the language with which he is familiar to address a representation to the Government and to the Advisory Board. Still he chose to address a representation only to the Advisory Board. He would rely on the judgment of the Apex Court in **R.Keshava v. M.B.Prakash** [(2001)2 SCC 145] to contend that there is no duty on the part of the Advisory Board, in such circumstances to forward the representation filed before the Advisory Board to the Government. If that be so, when the detenu has not addressed any representation to the Government, there is no duty to consider the same by the Government, he submits. 6. We feel that the writ petitioner is entitled to relief on the last ground mentioned, viz., that the representation W.P.(Crl) 565/11 4 though addressed to the Advisory Board ought to have been considered by the Government. There is no dispute that the detenu made a representation dated 15.9.2011. Under Section 9 of the Act, any representation which may be given by the detenu, along with other records is to be placed before the Advisory Board, within a period of three weeks from the date of detention. No doubt, no representation was given within the said time as such. The detention was ordered vide Ext.P1 dated 20.7.2011. The detenu was arrested on 28.7.2011. The period of three weeks from the date of detention expired on 18.8.2011. Under Section 10 of the Act, the Advisory Board is to render its opinion within a period of nine weeks from the date of detention. Therefore, the outer limit contemplated under Section 10 expired on 30.9.2011. The representation was given by the detenu only on 15.9.2011. The proceedings of the Advisory Board would show that the Advisory Board refers to the representation but it proceeded to call for remarks and then forwards the said representation to the Government. W.P.(Crl) 565/11 5 This fact is borne out by the opinion and covering letter. As stated, the Board has not taken a decision on the representation as such. It is referred to in the covering letter. 7. The learned Additional D.G.P. would submit that it is true that the Government has not considered the representation. So, this is a case where the undisputed position is that the representation which was addressed to the Advisory Board and which is referred to by the Advisory Board in the opinion and which is forwarded to the Government, as is evident from the covering letter accompanying the opinion, has not been considered or disposed of by the Government. 8. The learned counsel for the petitioner drew our attention to the decision of the Apex Court rendered by a bench of three judges reported in **Gracy v. State of Kerala** [AIR 1991 S.C.1090]. That was a case where the detenu made a representation to the Advisory Board. The Advisory Board considered the representation apart from the reference and gave its opinion that there is sufficient cause to justify the W.P.(Crl) 565/11 6 preventive detention. The Central Government passed an order confirming the detention. The question which was raised as is evident from paragraph 4 of the judgment was whether there was any violation of the guarantee under Article 22(5) of the Constitution of India, as a result of the omission on the part of the Central Government to consider the detenu's representation independent of its consideration by the Advisory Board. The contention taken on behalf of the State was that no representation was addressed to the Central Government and therefore, there is no obligation to consider the same. It was considering the same that the Apex Court held as follows : “8. It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Art.22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is : Whether W.P.(Crl) 565/11 7 one of the requirement of consideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of the substance to mere form. The nature of duty imposed on the detaining authority under Art.22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Art.22(5) casts on important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implied the duty to consider and decide the representation when made, as soon as possible. Art. 22(5) speaks of the detenu's 'representation against the order', and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional W.P.(Crl) 565/11 8 requirement implied by reading together Cls.(4) and (5) of Art.22, even though express mention in Art.22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authority viz. The detaining authority and the Advisory Board, both having independent power to act on its own. 9. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Art.22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art.22(5) in support of the contention of the learned Solicitor General. The contents of Art.22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the W.P.(Crl) 565/11 9 order of detention, the aforesaid dual obligation under Art.22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Art.22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.” 9. The learned Additional D.G.P. would draw our attention to the decision reported in **Sri Anand Hanumathsa Katare v. Additional District Magistrate** [(2006)10 SCC 725]. That was a case of preventive detention under the Karnataka Act. The Apex Court(a bench of two judges), differentiating the position obtaining under the said Act and the COFEPOSA took the view that the detaining authority becomes _functus officio_ the moment approval is accorded by the State Government and detention can be revoked only on the basis of the representation to the appropriate authority. Therein the court interalia referred to the decision reported in **Union of India v. Paul Manickam** [(2003) 8 SCC 342] among other cases and thereafter, the court took the view that in the W.P.(Crl) 565/11 10 grounds of detention, it was specifically communicated to the appellant and if he wanted to represent to the Government of Karnataka, he was to submit the same directly to the Government through the Superintendent of Central Prison, in which he is detained. That was a case where the representation was dealt with by the detaining authority. The court found that it had become _functus officio_ . 10. However, in **R.Keshava v. M.B.Prakash** [(2001)2 SCC 145], a Bench of three judges in fact specifically considered the effect of the decision in **Gracy v. State of Kerala** [AIR 1991 S.C.1090]. Therein also, the detenu had made a representation to the Advisory Board and the Central Government confirmed the detention without independent consideration of the detenu's representation. But, we must note that the respondent in the affidavit has stated expressly that Advisory Board had not forwarded the representation. The specific stand taken was that the Advisory Board had not forwarded the representation filed by the detenu to the State W.P.(Crl) 565/11 11 Government and consequently, it did not consider the representation. Therein the court referred elaborately to the decision in **Gracy v. State of Kerala** (supra). It is interalia held as follows : “A perusal of the aforesaid section and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its report prepared under Section 8 (c) of the Act. It may be appropriate for the Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate Government to make inquiries for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. We are of the opinion that in Gracy case it was not held that any such duty was cast upon the Board but even if the observations are stretched to that extent, we feel that those observations were uncalled for in view of the scheme of the Act and the mandate of the Constitution.” Still further, the court held as follows : “We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate W.P.(Crl) 565/11 12 Government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate Government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate Government, the order of detention of the appropriate Government is neither rendered unconstitutional nor illegal.” Therefore, the Apex Court has, after considering the decision in Gracy's case, among other decisions, held that in the absence of the representation or the knowledge of the representation having been made, the Government was justified in confirming the order of detention. On the other hand, in the facts of this case, there is no dispute at all that not only there is reference to the representation made to the Advisory Board, in the W.P.(Crl) 565/11 13 opinion of the Advisory Board but there is no dispute that in the covering letter addressed by the Board to the Government, the representation dated 15.9.2011 is specifically referred to. In fact, apparently, the Board did not get time to deal with the representation because, it was submitted belatedly and we cannot blame the Board for not having dealt with the representation because the representation was given only on 15.9.2011 and the period contemplated under Section 10 would have expired on 30.9.2011. But, when the Advisory Board sends a representation with a covering letter[we notice that the representation is referred to in the covering letter and representation dated 15.9.2011 is also enclosed], it is a case where the Government was aware of the representation and also the representation itself was before it. 11. In the facts of this case, while we cannot accept the contention of the petitioner that the Advisory Board has not disposed of the representation and therefore, the continued detention is bad, we are of the view that the continued W.P.(Crl) 565/11 14 detention of the detenu is illegal for the reason that the representation dated 15.9.2011, which was before the Government admittedly was not considered by the Government. 12. In the result, the petition is allowed and we hold that the continued detention of the alleged detenu is illegal and the detenu, viz., Sreejith @ Unni shall be released, unless his detention is necessary in connection with any other case. Registry will communicate the above order to the concerned Prison Authorities forthwith. Sd/- ## **K.M.JOSEPH, JUDGE.** Sd/- ## **M.L.JOSEPH FRANCIS, JUDGE.** tgs