Rishil Farha C.P vs State Of Kerala
2024 Latest Caselaw 28692 Ker

Kerala High Court

Rishil Farha C.P vs State Of Kerala on 3 October, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                &
              THE HONOURABLE MR. JUSTICE G.GIRISH
  THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
                   WP(CRL.) NO. 813 OF 2024
PETITIONER:

            RISHIL FARHA C.P
            AGED 26 YEARS
            W/O MUNAVAR FAIROS P.K, BAITHUL NOOR, KATHIRUR
            VILLAGE, PULLIYOD, UMMANCHIRA, KANNUR, PIN - 670649


            BY ADVS.
            M.H.HANIS
            P.M.JINIMOL
            T.N.LEKSHMI SHANKAR
            NANCY MOL P.
            ANANDHU P.C.
            NEETHU.G.NADH



RESPONDENTS:

    1       STATE OF KERALA
            REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO
            GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT
            SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001

    2       THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
            KANNUR DISTRICT, PIN - 670002

    3       THE DISTRICT POLICE CHIEF
            KANNUR CITY, PIN - 670002

    4       THE CHAIRMAN
            ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD,
            VIVEKANANDA NAGAR, ELAMAKKARA,ERNAKULAM DIST,
            PIN - 682026
                                              2024:KER:73156
WP(Crl) No.813/2024          2


    5     THE SUPERINTENDENT OF JAIL
          CENTRAL JAIL, VIYYUR, THRISSUR DIST, PIN - 670004


          BY ADVS.
          ADVOCATE GENERAL OFFICE KERALA
          ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)



          SRI K.A.ANAS, PUBLIC PROSECUTOR

     THIS WRIT PETITION (CRIMINAL) HAVING COME UP       FOR
ADMISSION ON 03.10.2024, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
                                                           2024:KER:73156
WP(Crl) No.813/2024                   3


                                                               "CR"

                                JUDGMENT

Raja Vijayaraghavan, J.

Munavar Fairos, the husband of the petitioner, was detained by Ext.P1

order dated 03.07.2024 passed by the 2nd respondent under Section 3(1) of

the Kerala Anti-Social Activities (Prevention) Act, 2007 ('KAAP' Act for

brevity). The detention order was executed on 09.07.2024 and he has been

undergoing detention from 01.06.2024.

2. This Writ Petition is filed challenging Ext.P1 order and for

issuance of a writ of habeas corpus to produce the body of the detenu and

to set him at liberty.

3. Though various contentions have been raised in the Writ

Petition to assail the order of detention, when the matter is taken up today,

Sri. M.H Hanis, the learned counsel for the petitioner, submitted that further

detention of the detenu, pursuant to Ext.P1 detention order, cannot be

sustained under the law for the reason that the further detention of the

detenu has been approved by the Advisory Board which cannot be said to 2024:KER:73156

have been duly constituted in accordance with the law. It is pointed out by

the learned counsel that the Advisory Board constituted under Section 8

shall consist of a Chairman, who is or had been a Judge, and two other

members, who are qualified under the Constitution of India to be appointed

as a Judge of the High Court. In the case on hand, a reference was made

by the Government to the Advisory Board and as the office of the Chairman

was lying vacant, the opinion was rendered by two members without the

junction of the Chairman. The said opinion was accepted by the

Government and the detention order was confirmed. It is submitted by the

learned counsel that the confirmation order passed by the Government

relying on the opinion submitted by an Advisory Board, which has not been

constituted in accordance with the law, is a clear violation of the

constitutional mandate and the statutory provisions. According to the

learned counsel, the rights guaranteed to the detenu under Articles 21 and

22(5) of the Constitution of India have been infringed and on that sole

ground, the detention order is liable to be interfered with.

4. Sri.K.A.Anas, the learned Public Prosecutor, would refer to the

provisions, and it was argued that the members of the Advisory Board are 2024:KER:73156

qualified to be appointed as Judges of the High Court, and in that view of

the matter, no prejudice has been caused.

5. We have considered the submissions advanced and have gone

through the records.

6. The Act 34 of 2007 is a law providing for preventive detention

and was enacted to provide for the effective prevention and control of

anti-social activities in the State of Kerala. As per the provisions of the Act,

power has been conferred on the Government or an officer authorized

under sub-section (2) of Section 3 to order the detention of the person if

satisfied, on information received from a police officer not below the rank of

Superintendent of Police with regard to the activities of any 'known goonda'

or 'known rowdy', with a view to prevent such person from committing any

anti-social activity within the State of Kerala. An order passed under Section

3 shall not remain in force for more than 12 days unless the same is

approved by the Government or by the Secretary, Home Department, as

authorized.

7. Under Article 22 of the Constitution of India, no law providing

for preventive detention shall authorize the detention of a person for a 2024:KER:73156

period longer than three months, unless the Advisory Board, duly

constituted, has reported before the expiration of the said period of three

months that there is, in its opinion, sufficient cause for detention. Article

22(4)(a) clearly indicates that even if the order of detention does not

prescribe any period, such an order of detention cannot be in force for a

period beyond three months, unless the Advisory Board before the

expiration of three months opines that there is sufficient cause for

detention. In other words, if the Advisory Board does not give its opinion

within a period of three months from the date of detention, the order of

detention beyond the period of three months would become illegal and not

otherwise. If within the period of three months, the Advisory Board opines

that there was no sufficient cause for such detention, then the State

Government would have to release the detenu forthwith.

8. In tune with the Constitutional provisions, an Advisory Board

has been constituted for the purposes of the KAAP Act. Section 8 of the Act

which deals with the Constitution of the Advisory Board reads as under:

'8. Constitution of Advisory Board.--(1) The Government shall, constitute one or such number of Advisory Boards as may be necessary for the purposes of this Act, with such territorial or functional jurisdiction, as may be specified.

2024:KER:73156

(2) Every such Board shall consist of a Chairman who is, or had been Judge of a High Court and two other members who are qualified under the Constitution of India to be appointed as a Judge of a High Court.

(3) The salary, allowances, tenure and service conditions of the Chairman and members of the Advisory Board may be such as may be prescribed.'

As can be seen from the provision, the Board shall consist of a

Chairman, who is or had been a Judge of the High Court and two other

members, who are qualified under the Constitution of India to be appointed

as a Judge of a High Court.

9. Section 9 of the Act provides that in every case, where a

detention order has been made under the Act, the Government shall, within

three weeks from the date of detention of a person, place before the

Advisory Board, the grounds on which the order has been made and the

representation, if any, made by the person affected, and, in the case where

the order has been made by an authorised officer, the report by such officer

under sub-section (3) of Section 3 of the Act.

10. Section 10 of the Act provides for the procedure of the Advisory

Board and further action. The said provision reads as follows:

2024:KER:73156

(1) The Advisory Board to which a reference is made under the above section shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government, or from the person concerned and if, in any particular case, it considers necessary so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within nine weeks from the date of detention of the person concerned."

(2) When there is difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. The absence of a member shall not invalidate the decision of the Board.

xxx xxxx xxx

(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.

11. A reading of the above provisions would make it clear that it is

a constitutional imperative to constitute an Advisory Board with a Chairman 2024:KER:73156

and two members and in every case, where a detention order has been

made the appropriate Government is bound under Section 9 to place before

the Board the grounds on which the order has been made and the

representation, if any, made by the detenu. The Advisory Board to which a

reference is so made is bound under Section 10 of the Act to consider the

materials placed before it and to decide the case of the detenu and to

submit a report in writing whether or not, there is sufficient cause for the

detention. The functions of the Advisory Board are (i) to consider the

material placed before it, (ii) to call for further information, if deemed

necessary, (iii) to hear the detenu, if he desires to be heard and (iv) to

submit a report in writing within nine weeks from the date of detention of

the detenu to the appropriate Government as to whether there is sufficient

cause for "such detention" or whether the detention is at all justified.

12. The important functions of the Advisory Board are self-evident.

Article 22(5) of the Constitution of India envisages a dual obligation of the

Government and corresponding dual right in favour of a detenu namely, (1)

to have his representation independently considered by the Government and

(2) to have his representation, in the light of all the facts and circumstances

of the case, considered by an Advisory Board. An Advisory Board is to report 2024:KER:73156

whether there is sufficient cause for detention and whether the detention is

at all justified. The setting up of an Advisory Board to determine whether

such detention is justified is a constitutional safeguard against arbitrary

detention. Without the intervention of an Advisory Board, an independent

body with persons on it of judicial qualification of a high order, detention

beyond the period prescribed, has to be held to be illegal. (See: Puranlal

Lakhanpal v. Union of India1, Shibapada Mukharjee v. State of

West Bengal2; Ranjit Dam v. State of West Bengal3).

13. In Abdul Karim v. State of West Bengal4, the Apex Court

has held that Article 22 prescribes the minimum procedure that must be

included in any law permitting preventive detention and if such

requirements are not observed, the detention infringes the fundamental

right of the detenu guaranteed under Articles 21 and 22 of the Constitution

of India. It has been further held that all the procedural requirements of

Article 22 are mandatory in character and even if one of the procedural

requirements is not complied with the order of detention would be rendered

illegal.

[AIR 1958 SC 163]

[(1974) 3 SCC 50]

[(1972) 2 SCC 516]

[(1969) 1 SCC 433] 2024:KER:73156

14. In the case on hand, the reference was heard and orders were

passed by two members of the Board. The Chairman was not a party to the

Board. Section 10(2) provides that when there is a difference of opinion

among the members forming the Advisory Board, the opinion of the

majority of such members shall be deemed to be the opinion of the Board.

The said provision only says that when the deliberation is carried out by the

Chairman and two members and if there is a difference of opinion, the

majority shall prevail. Though Section 10(2) provides that the absence of a

member shall not invalidate the decision of the Board, it goes against the

first part of the Section. At any rate, as the word 'member' and not

'Chairman' is used, we hold that for a 'duly constituted Advisory Board'

under Section 8 of the Act, the presence of the Chairman is a constitutional

imperative. We are of the view that Sections 8 and 10 do not empower two

members to constitute an Advisory Board and hear the reference made

under Section 10. In Kishori Lal v. State5, a Single Judge of the Gauhati

High Court had occasion to hold that where a detenu's case was considered

only by two members and not by three members of the Advisory Board, the

fundamental right of the detenu guaranteed under Article 21 of the

[AIR 1951 Assam 169] 2024:KER:73156

Constitution was infringed. The said view was followed by a Division Bench

of the Gauhati High Court in Tarun Kumar Das and etc. v. State of

Assam and Ors.6.

15. In the case on hand, the reference was heard by two members

without the presence of the Chairman of the Board. Based on the opinion

received from the Board, a confirmation order was passed by the

Government on 13.9.2024. The opinion given by the Board as well as the

confirmation order is vitiated as the reference was not considered by a duly

constituted Advisory Board and therefore, violative of the fundamental rights

of the petitioner under Articles 21, 22(4) and 22(5) of the Constitution of

India r/w Sections 8 and 10 of the KAAP Act.

16. Though various other contentions are raised to assail the order,

we do not think that it is necessary to delve into the same as the detention

order is liable to be set aside on the above ground alone. Those

contentions are left open.

Resultantly, this writ petition is allowed. It is held that the continued

detention of the detenu on the strength of Ext.P1 order is illegal. There will

[1982 Crl.L. J. 1054] 2024:KER:73156

be a direction to the Superintendent of Central Prison, Viyyur to release the

detenu, Sri. Munavar Fairos P.K., forthwith, if his detention is not required in

connection with any other case.

The Registry is directed to communicate the order to the

Superintendent of Central Prison, Viyyur, forthwith.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE

Sd/-

G. GIRISH JUDGE IAP & PS/1/10/24 2024:KER:73156

APPENDIX OF WP(CRL.) 813/2024

PETITIONER'S EXHIBITS:

Exhibit P1 A TRUE COPY OF THE ORDER NO.DCKNR/7988/2024-SSL DATED 03.07.2024 OF THE 2ND RESPONDENT

Exhibit P2 A TRUE COPY OF THE REPRESENTATION DATED 18.07.2024 SUBMITTED BEFORE THE 4TH RESPONDENT

Exhibit P3 A TRUE COPY OF THE ACKNOWLEDGMENT CARD EVIDENCING THE RECEIPT OF EXT P2 BY THE 4TH RESPONDENT

Exhibit P4 TRUE COPY OF THE REPRESENTATION DATED 18.07.2024 SUBMITTED BEFORE THE 1 ST RESPONDENT

Exhibit P5 TRUE COPY OF THE ACKNOWLEDGEMENT CARD EVIDENCING THE RECEIPT OF EXT P4