Pratheeksha vs State Of Kerala
2021 Latest Caselaw 5186 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
            THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                   &
                 THE HONOURABLE MRS.JUSTICE M.R.ANITHA
     FRIDAY, THE 12TH DAY OF FEBRUARY 2021 / 23RD MAGHA,1942
                       W.P(Crl.).No.314 OF 2020-S

PETITIONER/S:

                PRATHEEKSHA, AGED 22 YEARS, W/O.ATHUL,
                KRISHNA VILASAM VEEDU, MADATHIL KARAZHMA MURI, OCHIRA
                VILLAGE, MADATHIL KARAZHMA P.O.,
                KOLLAM DIST.

                BY ADVS.
                SRI.C.RAJENDRAN
                SRI.B.K.GOPALAKRISHNAN

RESPONDENT/S:

      1         STATE OF KERALA,
                REPRESENTED BY THE ADDL. CHIEF SECRETARY (HOME),
                GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM-695001.

      2         THE DISTRICT MAGISTRATE,
                CIVIL STATION, KOLLAM-691001.

      3         SUPERINTENDENT OF POLICE (RURAL),
                SUPERINTENDENT OFFICE, KOLLAM-691001.

      4         STATION HOUSE OFFICER,
                OCHIRA POLICE STATION, OCHIRA,
                KOLLAM DISTRICT-690526.

      5         THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA,
                THIRUVANANTHAPURAM-695012.

      6         THE SUPERINTENDENT,
                CENTRAL PRISON, THRISSUR-680010.

                R1-R6 BY GOVERNMENT PLEADER SRI.K.A.ANAS.


     THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON
12-02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(Crl.) No.314/2020                - 2 -


                K. Vinod Chandran & M.R. Anitha, JJ.
                -------------------------------------
                     W.P (Crl) No.314 of 2020-S
                -------------------------------------
             Dated, this the 12th day of February, 2021

                                  JUDGMENT

Vinod Chandran, J.

The petitioner is concerned with the detention of

her husband, who has been detained preventively under the

Anti social Activities (Prevention) Act, 2007 (Kerala)

['KAA(P)A' for brevity]. Learned Counsel Sri.C.Rajendran,

appearing for the petitioner urged five grounds to find the

detention order illegal. It is first contended that the

arrest was made on 07.09.2020 and approval issued after 12

days on 23.09.2020 and the receipt of the approval order in

the Jail was on 24.09.2020. It is then argued that

non-readable copies of many documents supplied relating to

the crimes spoken of in the detention order were illegible

and unreadable; which prejudiced the detenu insofar as not

being able to make a proper representation. The detenu is

said to have made a representation to the Government on

17.09.2020. From the counter affidavit of the 1 st respondent

it is pointed out that the same was received only on

24.09.2020. This indicates a very serious lapse at the

hands of the Superintendent of the Prison in which the

detenu is detained. Since the representation itself is

made on 17.09.2020, it ought to have been considered

immediately. It is then pointed out that the representation

though forwarded to the Advisory Board, was not considered

by the Government after it was returned by the Advisory

Board along with the report affirming the detention order.

Sri.Rajendran placed before us the decision of a Division

Bench of this Court in Dhanya v. State of Kerala [2013 KHC

745 = 2013 (4) KLT 856] to contend that the delay in

forwarding the representation caused a serious prejudice to

the rights of the detenu.

2. Sri.K.A.Anas, learned Government Pleader,

pointed out that the 12 days prescribed in Section 3(3)

excludes public holidays. If the public holidays, including

Saturdays which were then declared holidays by the

Government for reason of the pandemic situation, are

excluded, it would clearly indicate no violation. As far as

the non-readable copies, the decision in Usha Agarwal v.

Union of India & Others [(2007) 1 SCC 295] is pointed out

to contend that if the non-readable copies supplied is of

irrelevant documents, then that alone cannot vitiate the

detention order. As far as the representation is concerned,

the files were furnished to us across the Bar in which the

representation though dated 17.09.2020, was signed by the

detenu on 24.09.2020, on which date itself it was received

by the Government. From the records, it is pointed out

that the representation was also rejected on 12.11.2020.

The decision in Union of India & Others v. Saleena [(2016)

3 SCC 437] is relied on to contend that there is no

mandate for communication of the order rejecting the

representation. Haradhan Shah v. State of W.B. and Others

[(1975) 3 SCC 198] is relied on to argue that there is

also no requirement that the rejection should be by a

speaking order.

3. We have given our anxious consideration to the

contentions raised. The approval is on 23.09.2020. Looking

at the calendar of the year 2020 we see that between the 7 th

and 23rd, there are 6 intervening holidays, which include

saturdays. Hence, including the date of issue but excluding

that on which it was received (or vice versa), the approval

was on the 11th day and it was received in the Prison on the

12th day. There can be no violation found of Section 3(3).

4. As far as the non-readable copies, the learned

Counsel for the petitioner took us to pages 40, 47, 56, 75

and 76; to raise the ground of prejudice in making the

representation. Pages 40 and 47 relate to F.I.R.No.203 of

2014 registered in the Oachira Police Station. We find page

40 to be non-readable. As far as page 56 is concerned, it

relates to F.I.R.1169 of 2018 of the very same Police

Station, which we find to be legible and readable. Pages 75

and 76 are documents with respect to F.I.R.No.l862 of 2019

of Kayamkulam Police Station, which are found to be

illegible and non-readable. Hence, even if we find

prejudice, it can only be with respect to two Crimes relied

on in the detention order; eschewing which, there are again

four other crimes which would satisfy the categorization of

the detenu as a known rowdy under the KAA(P)A.

5. We have looked into the records and the

representation of the detenu dated 17.09.2020 as also been

shown the rejection on 12.11.2020. The representation is a

typed one with the date 17.09.2020. However, the same has

been signed by the detenu on 24.09.2020 and counter-signed

by the Superintendent of Prisons. Hence, on the same day

the representation was served on the Government.

Considering the fact that the reference to the Advisory

Board was also on 24.09.2020, the Government rightly

transmitted the said representation to the Advisory Board

without considering it. Dhanya has no application as there

is no delay in transmission of the representation or in its

consideration. Apparently by the time the petitioner made

the representation which was transmitted expeditiously; the

case was referred to the Advisory Board. Then, when the

matter was being considered by the Advisory Board, there

could not have been a consideration by the Government since

it would go against the dictum of the Hon'ble Supreme Court

in Golam Biswas v. Union of (India [(2015) 16 SCC 177].

6. The representation was considered by the

Advisory Board and the order of detention was affirmed. The

report of the Advisory Board was received by the Government

on 03.11.2020. The Government confirmed the detention on

11.11.2020 and rejected the representation on 12.11.2020.

Going by the cited precedents, we are of the opinion that

there was no requirement for communication of the order to

the detenu.

In the light of the above, we find no ground to

interfere with the order of detention and reject the writ

petition leaving the parties to suffer their respective

costs.

Sd/-

K.VINOD CHANDRAN JUDGE

Sd/-

M.R.ANITHA JUDGE Vku/-

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE PHOTOCOPY OF THE DETENTION ORDER NO.DCKLM/7956/2020-M16 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P2 A TRUE PHOTOCOPY OF THE MEMO FOR EXECUTING THE ORDER DATED 3.9.2020.

EXHIBIT P3 A TRUE PHOTOCOPY OF THE JAIL ADMISSION AUTHORIZATION DATED 3.9.2020.

EXHIBIT P4 A TRUE PHOTOCOPY OF THE FIR AND FIS NO.203/2014 OF THE OCHIRA POLICE STATION, KOLLAM.

EXHIBIT P5 A TRUE PHOTOCOPY OF THE FINAL REPORT 203/14 OF OCHIRA POLICE STATION, KOLLAM.

EXHIBIT P6 A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM DATED 4.3.14.

EXHIBIT P7 A TRUE PHOTOCOPY OF NON-READABLE COPY OF THE FIS IN CRIME NO.1870/2016 OF OCHIRA POLICE STATION, KOLLAM.

EXHIBIT P8 A TRUE PHOTOCOPY OF THE OFFICIAL MEMORANDUM OF THE BAIL ORDER DATED 10.10.2017.

EXHIBIT P9 A TRUE PHOTOCOPY OF THE FIR IN CRIME NO.1169/2018 OF OCHIRA POLICE STATION, KOLLAM.

EXHIBIT P10 A TRUE PHOTOCOPY OF THE NON-READABLE COPY OF THE FINAL REPORT IN CRIME NO.1169/2018 OF OCHIRA POLICE STATION, KOLLAM.

EXHIBIT P11 A TRUE PHOTOCOPY OF THE NON-LEGIBLE COPY OF THE FIR NO.1862/19 OF KAYAMKULAM POLICE STATION.

EXHIBIT P12 A TRUE PHOTOCOPY OF THE RELEVANT PAGES OF FINAL REPORT IN CRIME 1862/19 OF KAYAMKULAM POLICE STATION.

EXHIBIT P13 A TRUE COPY OF THE REMAND APPLICATION DATED 11.7.2020 (1ST TWO PAGE IS NOT LEGIBLE).

EXHIBIT P14 A TRUE PHOTOCOPY OF THE ORDER APPROVING THE DETENTION ORDER DATED 23.9.2020.

EXHIBIT P15 A TRUE PHOTOCOPY OF THE REPRESENTATION DATED 17.9.2020.

EXHIBIT P16 A TRUE PHOTOCOPY OF THE CONFIRMATION ORDER DATED 11.11.2020.

// TRUE COPY //