Kerala High Court

Prabhulla P vs State Of Kerala on 8 November, 2023

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                 THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
                                     &
                THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
        Wednesday, the 8th day of November 2023 / 17th Karthika, 1945
                         WP(CRL.) NO. 852 OF 2023(S)
PETITIONER:

     PRABHULLA P, AGED 32 YEARS, W/O DILEEP KUMAR, VRINDHAVANAM,
     EDAVANPARAMBU, KOTTUKUNNAM P.O, THIRUVANANTHAPURAM, PIN - 695 606

RESPONDENTS:

  1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
     GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
     THIRUVANANTHAPURAM,, PIN - 695 001
  2. THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, THIRUVANANTHAPURAM
     DISTRICT,, PIN - 695 043
  3. THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM RURAL, PIN - 695 033
  4. THE CHAIRMAN, ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
     VIVEKANANDA NAGAR, ELAMAKKARA, PIN - 682 026
  5. THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, VIYYUR, PIN - 670 004


     Writ petition (criminal) praying inter alia that in the
circumstances stated in the affidavit filed along with the WP(Crl.) the
High Court be pleased to issue an interim direction to the respondents to
produce the body of the detenu, Dileep Kumar @ Chanthu, aged 43 years, s/o
Sukumara Pillai, Vrindhavanam, Edavanparambu, Kottukunnam P.O,
Thiruvananthapuram, PIN-695 606, the husband of the petitioner who is
illegally detained in Central Prison, Viyyur, before this Hon'ble Court
and set him at liberty.


     This petition coming on for orders upon perusing the petition and
the affidavit filed in support of WP(Crl.) , this Court's order dated
24/08/2023 and upon hearing the arguments of M/S. M.H.HANIS, P.M.JINIMOL,
T.N.LEKSHMI SHANKAR, ANANDHU P.C., NEETHU.G.NADH & CIYA E.J. Advocates for
the petitioner and of SRI. GRASHIOUS KURIAKOSE, ADDL. DIRECTOR GENERAL OF
PROSECUTION & SRI. C.K SURESH, SENIOR PUBLIC PROSECUTOR for R1, R2, R3 &
R5, the court passed the following:


                                                                  P.T.O
                   ANU SIVARAMAN & C. PRATHEEP KUMAR, JJ.
                 =============================
                             W.P. (Crl). No.852 of 2023
                  ======== ===================
                       Dated this the 8th day of November, 2023
                                    ORDER

Anu Sivaraman, J

A common question of law is raised in these writ petitions

whether the Government while confirming an order of preventive

detention under Section 10(4) of the Kerala Anti-Social Activities

(Prevention) Act, 2007 is required to state the reasons for deciding

that the detention is to continue for the maximum period as

provided under Section 12 thereof.

2. The learned counsel appearing for the petitioner would

contend that where the specific power to decide the duration of the

preventive detention is given to the Government to exercise while

confirming the order of detention, the absence of a reason to extend

the period of detention for the maximum permissible period would,

by itself, invalidate the order of detention. It is further contended

that even if the failure to mention the reason for extending the

detention for the maximum period does not invalidate the order of

detention per se, it would go to show the lack of application of mind

of the confirming authority at the stage of confirmation of the order

of detention and that the said want of application of mind would

vitiate the order.

W.P. (Crl). No.852 of 2023

3. The learned Director General of Prosecution, who appears on

behalf of the State, would, on the other hand, contend that an order

of preventive detention, which is otherwise valid and sustainable,

would not be rendered invalid only for the reason that the reason

for inflicting the detention for the maximum period is not mentioned

in the order. It is further contended that once the subjective

satisfaction of the detaining authority for the preventive detention

is satisfied, the fact that the Government which is given the power

to confirm the detention order and continue the detention for such

period, as it thinks fit, does not specify the reason for continuing

the detention for the maximum period, by itself, cannot have any

effect of invalidating the order.

4. Reliance is placed on the decisions of the Apex Court on the

point including the decisions in Vijaya Kumar v. Union of India

and others (1988 KHC 924), Dattatraya Moreshwar v. The State

of Bombay and others (1952 Cri.L.J. 955), Fagu Shaw and

others v. State of W. B. (1974 KHC 642) as also the latest decision

of the Apex Court in Pesala Nookaraju v. The Government of

Andhra Pradesh and others. [2023 SCC online SC 1003] In

Pesala Nookaraju v. The Government of Andhra Pradesh and

others, a three Judges Bench of the Apex Court has considered the

provisions of Section 12 of the Andhra Pradesh Prevention of W.P. (Crl). No.852 of 2023

Dangerous Activities of Boot-leggers, Dacoits, Drug Offenders,

Goondas, Immoral Traffic Offenders and Land Grabbers Act, 1986

as also Articles 22(4) and 22(5) of the Constitution of India and held

that if any period is specified in the confirmatory order, then, the

period of detention would be up to such period, if no period is

specified, then it would be for a maximum period of 12 months from

the date of detention.

5. The Apex Court in Vijaya Kumar v. Union of India and

others [1988 KHC 924] had also considered a similar provision

contained in the Conservation of Foreign Exchange and Prevention

of Smuggling Activities Act and had held as follows:

"29. The last point that has been urged on behalf of the appellant is that the Government has not applied its mind while confirming the detention of the appellant for the maximum period of one year from the date of detention as prescribed in S.10 of the Act. It is submitted that some reason should have been given why the maximum period of detention is imposed on the appellant. This contention, in our opinion, is devoid of any merit. S.10 of the Act provides, inter alia, that the maximum period for which any person may be detained in pursuance of any detention order shall be a period of one year from the date of detention or the specified period. S.10 does not provide that in imposing the maximum period of detention, any reason has to be given. In conforming the order of detention, it may be reasonably presumed that the Government has applied its mind to all the relevant facts and, thereafter, if it imposes the maximum period of detention, it cannot be said that the Government has not applied its mind as to the period of detention. In any event, under S.11 of the Act, a detention order may, at any time, be revoked or modified by the Government. In the circumstances, we do not think that the detenu was in the least prejudiced or that W.P. (Crl). No.852 of 2023

there has been non application of mind by the Government to the question of period of detention of the detenu. This contention of the appellant also fails. No other point has been urged in this appeal.

xx xxx xxx xxx xxx

38. If the Advisory Board reports that there is in its opinion sufficient cause for the detention of the person, the concerned authority may confirm and continue the detention of the person for such period as it thinks fit. The expression "as it thinks fit" in S.8(f) of the Act indicates that the concerned authority after considering the report of the Advisory Board may fix any period for detention. The authority is not required to give any special reason either for fixing a shorter period or for fixing the maximum period prescribed under S.10. The opinion of the Advisory Board and the grounds of detention are the only basis for confirming and continuing the detention, for any period, even up to the maximum period prescribed. S.11 provides for revocation of detention order. The detention order may at any time be revoked or modified. When the power to revoke the order of detention could be exercised at any time, it is not necessary for the authority to articulate special reasons for continuing the detention for any period much less for the maximum period prescribed under the Act."

The paragraphs extracted are the expressions of opinion by the

Judges who constituted the Bench, who wrote separate concurring

judgments on the point.

6. In Fagu Shaw and others v. State of W. B. (supra) also, it was

held that where a maximum period of detention is prescribed by the

statute and the detention is limited to the maximum period as

prescribed, the mere fact that the reason for continuing the

detention for the maximum period is not stated in the order would

not invalidate the order.

7. In the above view of the matter, we are of the opinion that the W.P. (Crl). No.852 of 2023

contention raised by the learned counsel appearing for the

petitioner to the effect that the non mentioning of the reason for