W.P.(Crl.) No.522 of 2011 (S)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.M.JOSEPH & THE HONOURABLE MR.JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 6TH DAY OF JANUARY 2012/16TH POUSHA 1933 W.P.(CRL.)No. 522 of 2011 (S) ======================== ## PETITIONER: - 1 SIJI MARTIN,W/O.MARTIN,AGED 33 YEARS, PADAYATTY HOUSE CHENGAL KALADY P.O ERNAKULAM DISTRICT. BY ADV.SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER ## RESPONDENTS: - 1 STATE OF KERALA - REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME DEPARTMENT GOVERNMENT SECRETARIAT TRIVANDRUM. 695 001. - 2 THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE ERNAKULAM 682 031. - 3 THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL ALUVA ERNAKULAM DISTRICT 683 103. - 4 THE SUB INSPECTOR OF POLICE, KALADY POLICE STATION, KALADY P.O ERNAKULAM DISTRICT 685012. - 5 THE SUPERINTENDENT OF CENTRAL PRISON, VIYYOOR, THRISSUR 680 001. BY D.G.P., SRI. T. ASIF ALI THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 06-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## APPENDIX |PETITIONER'S EXHIBITS:|PETITIONER'S EXHIBITS:|| |---|---|---| |EXT.P1 :|TRUE COPY OF THE DETENTION ORDER DT.5.9.11 OF|| ||2ND RESPONDENT.|| |EXT.P2 :|TRUE COPY OF THE GROUNDS OF DETENTION SERVED|| ||ON THE DETENU.|| |EXT.P3 :|TRUE COPY OF THE REPORT DT.8.8.11 OF 3RD RESPONDENT.|| |EXT.P4 :|TRUE COPY OF THE JUDGMENT IN W.P.(C) 13990/11|| ||DT.8.7.11 OF THIS COURT.|| |EXT.P5 :|TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME|| ||NO.161/11 OF KALADY POLICE STATION.|| |EXT.P6 :|TRUE COPY OF FIR AND FI STATEMENT IN CRIME|| ||NO.482/11 OF KALADY POLICE STATION.|| |EXT.P7 :|TRUE COPY OF THE REPRESENTATION SUBMITTED BY|| ||THE DETENU|BEFORE THE 1ST RESPONDENT.| |EXT.P8 :|TRUE COPY OF THE REPRESENTATION SUBMITTED TO|| ||THE ADVISORY BOARD BY THE DETENU FROM THE|| ||CENTRAL PRISON.|| |EXT.P9 :|TRUE COPY OF THE LETTER DT.20.10.11 ISSUED|| ||ON BEHALF OF THE 1ST RESPONDENT.|| RESPONDENTS' EXHIBITS: NIL // TRUE COPY // PA TO JUDGE ## **K.M. JOSEPH & M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(Crl.) No.522 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 6[th] day of January, 2012 ## **JUDGMENT** ## K.M. Joseph J., The petitioner challenges detention of her husband (Martin @ Potty Martin) under the Kerala Anti Social Activities (Prevention) Act 2007(hereinafter referred to as 'the Act'). The order of detention is Ext.P1 dated 5.9.2011. The detenu was detained on 10.9.2011. There are three cases which are the basis for Ext.P1. Crime No.1098 of 2008 involves Sections 143, 147, 148, 120(b), 307 read with Section 149 of the Indian Penal Code and Section 3 of the Explosive Substance Act. The date of occurrence was 17.11.2008. The charge sheet was filed on 30.9.2010. The next case is crime No.161 of 2011, showing that the detenu appears to be involved with offences under Sections 341 and 323 of the Indian _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** Penal Code. The date of the occurrence is alleged as 27.2.2011, for which the charge sheet was filed on 30.3.2011. Finally, the detenu is alleged to be involved in offences under Section 294(b), 341 and 506(1) read with Section 34 of the Indian Penal Code and the Crime number is 482 of 2011. The alleged incident occurred on 27.5.2011 at 2.30 a.m. The charge sheet is filed on 31.5.2011. 2. We heard learned counsel for the petitioner and learned Director General of Police. 3. Learned counsel for the petitioner would contend that there is delay in passing the order. He would point out that the last prejudicial activity alleged was on 27.5.2011. The charge sheet is filed on 31.5.2011 and yet the order of detention is passed only on 5.9.2011. Next, he would contend that the order of detention is vitiated by malafides. According to him, Crime No.482 of 2011 is allegedly committed at 2.30 a.m. on 27.5.2011. The crime is registered, however, only on 3.30 p.m. on the same day. He referred to Ext.P6, which is the F.I. Statement and he contended that the contents of the F.I. statement would show that the police _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** was informed about the alleged crime immediately after the alleged crime at 2.30 a.m. and they registered the case only at 3.30 p.m. He contended that it is only an after thought. 4. Next, he would contend that it is settled that an order of detention should not be passed in a case where the ordinary law can take care of the situation. In this connection he relied on the decision of the Apex Court reported in **Rekha v. State of Tamil Nadu through Secretary to Government and anothe** r [2011 (5) SCC 244]. Lastly, he contended that though the detenu had filed a representation on 1.10.2011, it is seen disposed only on 20.10.2011. It is seen that the order of disposal of the representation was received by him on 31.10.2011. He would in fact submit that the order rejecting the representation is pre-dated. He relied on the following judgments: (i) **Sulaiman v. State of Kerala** (2010(3) KLT 790) (ii) **Pebam Ningol Mikoi Devi & State of Manipur and others** (2010(9) SCC 618) _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** 5. Per contra, learned D.G.P., would contend that this is a case where the detenu was detained earlier under the Act. Even after the same, the detenu has continued to operate and indulge in antisocial activities, which are sought to be prevented as is evident from the three cases which are already referred to. He submits that there is no case made out on any of the grounds, as canvassed by the learned counsel for the petitioner. He further submits that as far as the question of delay in passing the order of representation is concerned, it must be remembered that when the petitioner has not made out a case on merits otherwise, what is the prejudice caused to the detenu by the alleged delay in disposing of the representation and the learned D.G.P. also pointed out that having regard to the object of the statute, the contention of the petitioner about the delay in disposal of the representation may not be justified. He would of course contend that there is no unexplained delay. 6. We are of the view that we need not go into the other issues which are raised by the learned counsel for the petitioner even proceeding that the petitioner has not established a case as _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** such with reference to other grounds, we are impressed by the contention taken that there is unexplained delay in disposing of the representation. Before we proceed further, we must however refer to the argument of the learned D.G.P. that delay by itself may not be a ground. 7. In **Pabitra N. Rana v. Union of India and others (** A.I.R 1980 (S.C.) 798, a Bench of three Judges dealing with the case of delay of representation. Therein inter-alia held as follows: “When there has been unexplained and unreasonable delay of one month and five days in deciding the representation filed by the detenu against his detention under Section 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, that by itself is sufficient to render the detention void. The constitutional right to file a representation to the Government carries with it impliedly a right that the representation must be disposed of as quickly as possible and any unexplained delay would amount to a violation of the constitutional guarantee contained in Article 22(5). The obligation of the appropriate detaining authority to _W.P.(Crl.) No.522 of 2011_ :6: take a decision on the representation filed by the detenu is quite apart and distinct from its obligation to constitute a Board and to send the representation to it. The detaining authority is not entitled to wait for the opinion of the Board but has to take its decision without the least possible delay.” 8. We also feel that the Bench of this Court as in **Sulaiman v. State of Kerala** (2010 (3) KLT 790) has taken the view as follows: “Precedents galore to confirm that this right of the detenu for an earliest opportunity to make a representation against the order of detention carries with it the imperative implication that the representation shall be considered at the earliest opportunity. It is, in fact, unnecessary to refer to the various precedents. The learned counsel has drawn our attention tot he following precedents in support of his contention: (1) Pabitra N.Rana v. Union of India (AIR 1980 SC 798) (2) Shalini Soni v. Union of India (AIR 1981 SC 431) (3) Venmathi Selvan v. State of T.N.(1998) 5 SCC 510 (4) R. Paulsamy v. Union of India (AIR 1999 SC 2004) (5) Rajammal v. State of T.N.(1999(1) KLT SC 37 _W.P.(Crl.) No.522 of 2011_ :7: (6) Harsha Santosh Patil v. State of Maharashtra (2006) 12 SCC 211 The constitutional mandate that the detenu must be afforded an earliest opportunity to make a representation against the order of detention will lose all its meaning, content and sheen if such representation were not considered at the earliest. An earliest opportunity to make a representation without a corresponding obligation to consider such representation at the earliest would be an absolute absurdity. That would render the right empty, hollow and meaningless. Therefore, it is easy to come to a conclusion that such a representation must be considered at the earliest.” 9. We may consider whether there is unexplained delay. The petitioner has specifically pleaded inter-alia that after refering to Exts.P7 and P8 representations, they were not considered expeditiously. It is stated that though they were forwarded as early as on 1.10.11, the same are not considered expeditiously and that the unexplained delay vitiated detention of detenu. Ground 'J' deals with the delay. In the counter affidavit filed on behalf of the first respondent, it is inter-alia stated that the averment of the petitioner _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** that the representation submitted by the detenu has not been considered properly and expeditiously is contrary to the very facts. It is stated that the representation dated 01.10.11 of the detenu, received in Government on 10.10.11 was examined in detail by the Additional Chief Secretary (Home & Vigilance) and that it was found that the request/ arguments in the representation were legally unsustainable. Therefore the request in the representation to release the detenu from preventive detention was declined and a detailed reply was given to him vide letter No.72270/SS A5/2011/Home dated 20.10.2011 and was served on the detenu through the Superintendent, Central Prison, Viyyur. 10. The learned D.G.P. points out that the contention of the petitioner that the detenu was served with the order rejecting the representation only on 31.10.2011 is not correct. He handed over the order on the representation containing the acknowledgment of the detenu which shows that it was received on 22.10.2011. Be that as it may, it cannot advance the case of the State. 11. In **Sulaiman v. State of Kerala** (2010 (3) KLT 790) a _W.P.(Crl.) No.522 of 2011_ **==> picture [14 x 9] intentionally omitted <==** delay of 21 days was frowned upon and it resulted in the continued detention of the detenu being interfered with. ## 12. Further in **Pebgam Ningol Mikoi Devi v. State of** **Manipur and others** 2010(9) SCC 618, the Court inter alia held as follows: “The second issue is that of delay. There has been a delay of 7 days i.e., from 9.10.09 to 16.10.09 in forwarding the representation of the detenu to the Central Government. There has been no explanation of the reasons for this delay given by the respondents.” In paragraph 36 of the same, the Court further held that “the delay of 7 days may not be inordinate: however, at no stage has there been an explanation given for this delay and there is no clarification.” 13. In this case, applying the legal principles we must hold that the delay is not explained. The representation was made on 1.10.2011 to the Superintendent of the Viyyoor Jail, namely the 5[th] respondent is not in dispute. The 5[th] respondent has not filed any Counter Affidavit. It is not in dispute, further, that the Government received representation on 10.10.11. So there is delay in the matter _W.P.(Crl.) No.522 of 2011_ **==> picture [20 x 9] intentionally omitted <==** of transmitting the representation. After the matter is received, it is only on 20.10.2011 that a decision is taken. We have already referred to the pleadings of the first respondent. 14. In such circumstances we feel that this Writ Petition is only to be allowed on the ground that there is unexplained delay in dealing with the case. 15. In the result, the Writ Petition is allowed and we declare that the continued detention of the detenu, Sri.Martin @ Potty Martin is illegal and we order that he shall be released forthwith, unless his detention is necessary or required in connection with any other case. The Registry will communicate this Order to the concerned Prison Authorities forthwith. **K.M. JOSEPH, (JUDGE)** ## **M. L. JOSEPH FRANCIS, (JUDGE)** dl/ _W.P.(Crl.) No.522 of 2011_ :11: ## **K.M. JOSEPH &** ## **M.L.JOSEPH FRANCIS JJ.,** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** W.P.(Crl.) No.522 of 2011 **- - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 6[th] day of January, 2012 ## **JUDGMENT** ## K.M. Joseph J., xx xx xx xx xx xx xx xx In the result, the Writ Petition is allowed and we declare that the continued detention of the detenu, Sri.Martin @ Potty Martin is illegal and we order that he shall be released forthwith, unless his detention is necessary or required in connection with any other case. The Registry will communicate this Order to the concerned Prison Authorities forthwith. _W.P.(Crl.) No.522 of 2011_ :12: **(K.M.JOSEPH),** JUDGE. **(M.L.JOSEPH FRANCIS),** JUDGE. dl