Kerala High Court

Farsana K vs State Of Kerala on 17 October, 2024

Author: Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

                                                        2024:KER:77292

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W.P(Crl) No. 1043 of 2024




              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
        THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
                                        &
                  THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 17TH DAY OF OCTOBER 2024 / 25TH ASWINA, 1946


                            WP(CRL.) NO. 1043 OF 2024

PETITIONER:

                FARSANA K
                AGED 26 YEARS
                W/O MOHAMMED RIYAS, ARANGATH HOUSE,
                KUZHIYAMPARAMBA, KUZHIMANNA P.O,
                MALAPPURAM, PIN - 673641


                BY ADVS.
                M.H.HANIS
                P.M.JINIMOL
                T.N.LEKSHMI SHANKAR
                NANCY MOL P.
                ANANDHU P.C.
                NEETHU.G.NADH
                RIA ELIZABETH T.J.
                SINISHA JOSHY
                ANN MARY ANSEL


RESPONDENTS:

       1        STATE OF KERALA
                REPRESENTED BY THE ADDITIONAL CHIEF
                SECRETARY TO GOVERNMENT, HOME AND VIGILANCE
                DEPARTMENT, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM, PIN - 695001
                                                         2024:KER:77292

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W.P(Crl) No. 1043 of 2024




       2        THE DISTRICT COLLECTOR &
                DISTRICT MAGISTRATE
                COLLECTORATE RD, UP HILL, MALAPPURAM
                DISTRICT, PIN - 676505

       3        THE DISTRICT POLICE CHIEF
                DISTRICT POLICE OFFICE, UP HILL POST,
                MALAPPURAM DISTRICT, PIN - 676504

       4        THE CHAIRMAN
                ADVISORY BOARD, KAAPA, SREENIVAS, PADAM
                ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,
                ERNAKULAM DIST, PIN - 682026

       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)


OTHER PRESENT:

                SRI ANAS. K A, PUBLIC PROSECUTOR

     THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR
ADMISSION ON 17.10.2024, ALONG WITH WP(CRL.).743/2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                                                2024:KER:77292

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W.P(Crl) No. 1043 of 2024



                                  JUDGMENT

Raja Vijayaraghavan, J.

The petitioner is undergoing detention pursuant to Ext.P1 order

dated 05.06.2024 issued by the competent authority under Section 3 of

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

brevity). He has approached this Court seeking the issuance of a Writ of

Habeas Corpus to set him at liberty.

2. It appears that the petitioner had earlier approached this

Court, seeking issuance of a writ of habeas corpus for release of the

detenu by filing W.P(Crl.) No.743 of 2024. While assailing the order of

detention, the following contentions were raised:

i) The Detaining Authority did not hear the detenu before passing Ext.P1 order.

ii) Neither the Detaining Authority nor the Sponsoring Authority had read out and explained to the detenu the report of the Sponsoring Authority.

iii) There is a delay of one month and 25 days from the last prejudicial activity to the date of detention order which would vitiate the aforesaid order.

2024:KER:77292

iv) The order of detention was not approved by the Government within twelve days as required under Section 3(3) of KAA(P)A.

v) The first crime reckoned by the authorities concerned for the classification of the detenu as a 'known rowdy' has been initiated by the officials of the Customs Department, and hence it ought to have been exempted from being considered.

vi) The 3rd and 4th crime attributed to the detenu arose out of the same transaction, and hence the authorities concerned ought to have excluded the same.

vii) The authorities concerned ought to have awaited the outcome of the proceedings under Section 107 of the Code of Criminal Procedure before taking decision as to the necessity to initiate preventive detention measures against the detenu.

viii) The authorities concerned ought to have considered the feasibility of resorting to externment of the detenu before opting for preventive detention.

ix) The authorities concerned ought to have considered the sufficiency of bail conditions imposed by the courts while granting bail to the detenu, in the crimes attributed against him, for ensuring that the detenu does not involve in further prejudicial activities.

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x) There were no sufficient materials placed before the Detaining Authority for reckoning the last two crimes for the purpose of classifying the detenu as 'known rowdy'.

3. This Court, by judgment dated 05.08.2024 dismissed the Writ

Petition holding that there was no reason to interfere with the order.

4. Thereafter, the instant Writ Petition is filed on 24.09.2024 with

a prayer to quash the order of detention and for the issuance of a writ of

mandamus commanding the respondent to release the detenu.

5. Sri.M.H.Hanis, the learned counsel appearing for the petitioner

submitted that the principles of res judicata cannot be made applicable to

habeas corpus matters. He submitted that a fresh Writ Petition was

necessitated owing to two main grounds. He contended that the detenu

had earlier filed two representations before the Board one on 13.6.2024

and another on 19.06.2024. However, the said representations were not

promptly considered. Though the representation dated 19.06.2024 was

produced before this Court as Ext.P2 in the earlier Writ Petition, the

non-consideration of the same in a prompt manner was not raised or

considered by this Court. It is further submitted that the representation 2024:KER:77292

dated 13.06.2024 submitted through the counsel and filed before the 4th

respondent was forwarded along with the opinion to the 1st respondent.

The 1st respondent passed the order of confirmation on 29.07.2024 and it

was thereafter that the representation dated 13.06.2024 was taken up and

orders were passed on 31.07.2024. However, nothing is mentioned about

the representation dated 19.06.2024. According to the learned counsel,

independent and prompt consideration of the representation by the

Advisory Board and by the detaining authority flows from Article 22(5) of

the Constitution of India, and the delay in consideration or for that matter,

non-consideration would affect the validity of the order of detention. The

learned counsel would then submit that under Section 12 of the KAAP Act,

the maximum period to which a person can be detained is six months, and

before passing an order, there should be a proper application of mind on

the part of the detaining authority as to whether the maximum period of

detention is to be ordered. In the case on hand, a perusal of the order

would not reveal that there has been proper application of mind on the

part of the detaining authority. It is further submitted that after the

disposal of the Writ Petition on 05.08.2024, the detenu had submitted

Exts.P4 and P6 representations before the Government as well as the 2024:KER:77292

Board on 09.09.2024. However, the same was considered and orders were

passed by the Government only on 13.09.2024. The Board has however

not taken any decision on the representation and the fate has not been

communicated to the detenu.

6. In response, Sri.K.A.Anas, the learned Senior Government

Pleader submitted that the Writ Petition cannot be maintained under law.

He would refer to the observations made by a Division Bench of this Court

in judgment dated 20.02.2024 in W.P.(Crl.) No.109 of 2024 and that of the

Constitution Bench judgment of the Apex Court in Ghulam Sarwar v.

Union of India1 and it is argued that a writ of habeas corpus raising the

very same grounds, cannot be entertained. It is pointed out by the

learned Government Pleader that the contentions raised by the petitioner

before this Court in this Writ Petition were all raised in the earlier Writ

Petition and the same were all repelled. He would point out that in the

earlier Writ Petition, the detenu had not raised a contention that he had

submitted a representation before the Board on 19.06.2024 and the same

was not considered, though the writ petition was filed only on 05.07.2024.

The representation dated 13.06.2024 submitted by the detenu through his

1967 KHC 679 2024:KER:77292

counsel was received by the Advisory Board only on 19.06.2024 and while

forwarding the opinion, the representation dated 13.06.2024 was also

forwarded to the Government. The said representation was in fact

considered by the Board while passing the opinion. It is further submitted

that the opinion was received by the Government on 19.07.2024 and the

order confirming the detention was passed on 29.7.2024. Immediately

thereafter, orders were passed on the same by the Government on

31.07.2024 and its fate was communicated to the detenu. In the

meantime, the Writ Petition filed by the petitioner before this Court on

5.7.2024 was dismissed by judgment dated 5.8.2024. It is submitted that

the Board has become functus officio after furnishing its opinion in terms

of Section 10. It is submitted that the provisions of the KAAP Act do not

enable the Board to take up a representation after the order of

confirmation and take any decision. In the case on hand, the

representation dated 09.09.2024 was considered by the Government and a

decision was taken on 13.9.2024 and its fate was communicated to the

detenu.

7. We have considered the submissions advanced and have gone

through the records.

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8. In Nisha Salim v. State of Kerala and Ors.2, this Court

after referring to all previous precedents had held that when the grounds

raised in the new Writ Petition are essentially the same, though couched in

different terminology, such a Writ Petition cannot be maintained. It

appears that a few contentions have been taken by the petitioner which

were not raised before this Court earlier. In that view of the matter,

despite the strong objection as regards maintainability raised by the

learned Government Pleader, we decided to hear the matter on its merits

as the liberty of an individual was involved.

9. The contention of the petitioner that he had submitted two

representations, one on 13.06.2024 through his counsel and the other on

19.06.2024 cannot be sustained. As a matter of fact, in the earlier Writ

Petition, which was filed on 05.07.2024, the petitioner had produced a

copy of the representation dated 13.06.2024 submitted through counsel

before the Advisory Board. However, in the index to the Writ Petition, the

date of the representation was incorrectly mentioned as '19.06.2024' and

the same was carried over in the Appendix to the Judgment. In fact, the

only representation submitted by the detenu prior to the filing of the

[2019 (2) KHC 1014] 2024:KER:77292

earlier Writ Petition is one dated 13.06.2024, and the same was produced

along with the Writ Petition.

10. Under Section 12 of the Act, the Advisory Board is required to

furnish its opinion as to whether or not there is sufficient cause for

detention within 9 weeks from the date of the detention order. In terms of

the same, the Advisory Board had given its opinion on 19.07.2024 within

the time stipulated under the statute. While taking a decision, the Advisory

Board in all certainty has considered the representation dated 13.06.2024.

Along with its opinion, the representation dated 13.06.2024 submitted by

the detenu was also forwarded to the Government. The Government,

after perusing the opinion, confirmed the order of detention on

29.07.2024. Immediately thereafter, the representation dated 13.06.2024,

forwarded by the Board was taken up and orders were passed on

31.07.2024. Later, on 05.08.2024, the writ petition filed by the detenu was

dismissed by this Court.

11. The question is whether there is a non-consideration of the

representation by the Advisory Board or by the Government and if there is

any delay. In K.M. Abdulla Kunhi v. Union of India3, in the context of

(1991) 1 SCC 476 2024:KER:77292

an order passed under the COFEPOSA Act, 1974, the Apex Court had

observed that even after receipt of the report of the Advisory Board and

confirmation of the detention order, the Government is liable to consider

the representation independent of the opinion of the Advisory Board. It

was held that the purpose of considering representation is different from

the purpose of obtaining a report of the Advisory Board. Though there is

no prescribed time limit for disposal of the representation, it has to be

considered and disposed of expeditiously. The question of delay in

disposal has to be considered in the context of the necessities of the

particular fact situation. It would be apposite to refer to paragraphs 19

and 20 of the judgment:

19. There is no constitutional mandate under clause (5) of Article 22, much less any statutory requirement to consider the representation before confirming the order of detention. As long as the government without delay considers the representation with an unbiased mind there is no basis for concluding that the absence of independent consideration is the obvious result if the representation is not considered before the confirmation of detention. Indeed, there is no justification for imposing this restriction on the power of the government. As observed earlier, the government's consideration of the representation is for a different purpose, namely, to find out whether the detention is in conformity with the power under the statute. This has been explained in Haradhan Saha case [(1975) 3 2024:KER:77292

SCC 198], where Ray, C.J., speaking for the Constitution Bench observed that the consideration of the representation by the government is only to ascertain whether the detention order is in conformity with the power under the law. There need not be a speaking order in disposing of such representation. There is also no failure of justice by the order not being a speaking order. All that is necessary is that there should be real and proper consideration by the government.

20. It is necessary to mention that with regard to liberty of citizens the court stands guard over the facts and requirements of law, but court cannot draw presumption against any authority without material. It may be borne in mind that the confirmation of detention does not preclude the government from revoking the order of detention upon considering the representation. Secondly, there may be cases where the government has to consider the representation only after confirmation of detention. Clause (5) of Article 22 suggests that the representation could be received even after confirmation of the order of detention. The words 'shall afford him the earliest opportunity of making a representation against the order' in clause (5) of Article 22 suggest that the obligation of the government is to offer the detenu an opportunity of making a representation against the order, before it is confirmed according to the procedure laid down under Section 8 of the Act. But if the detenu does not exercise his right to make representation at that stage, but presents it to the government after the government has confirmed the order of detention, the government still has to consider such representation and release the detenu if the detention is not within the power conferred under the statute. The confirmation of the order of detention is not conclusive as against the detenu. It can be revoked 2024:KER:77292

suo motu under Section 11 or upon a representation of the detenu. It seems to us therefore, that so long as the representation is independently considered by the government and if there is no delay in considering the representation, the fact that it is considered after the confirmation of detention makes little difference on the validity of the detention or confirmation of the detention. The confirmation cannot be invalidated solely on the ground that the representation is considered subsequent to confirmation of the detention. Nor it could be presumed that such consideration is not an independent consideration. With all respect, we are not inclined to subscribe to the views expressed in V.J. Jain [(1979) 4 SCC 401], Om Prakash Bahl [W.P. No. 845 of 1979, decided on October 15, 1979 (Unreported)] and Khairul Haque cases [W.P. No. 246 of 1969, decided on September 10, 1969 (Unreported)]. They cannot be considered to be good law and hence stand overruled.

It was held that so long as the representation is independently

considered by the Government and if there is no delay in considering the

representation, the fact that it is considered after the confirmation of

detention makes little difference in the validity of the detention or

confirmation of the detention. The confirmation cannot be invalidated

solely on the ground that the representation is considered subsequent to

confirmation of the detention. Nor could it be presumed that such

consideration is not an independent consideration.

2024:KER:77292

12. In the case on hand, the representation dated 13.06.2024

was submitted before the Advisory Board and the same was received on

19.06.2024. The Advisory Board, after considering all relevant facts, had

given its opinion on 19.07.2024, within the time stipulated in Section 10 of

the Act. The Government proceeded to confirm the order on 29.07.2024

and immediately thereafter, considered the representation and rejected the

same on 31.07.2024. It cannot be said that there is any long or undue

delay. This is in terms of the law laid down in Abdulla Kunhi (supra).

Furthermore, in Senthamil Selvi v. State of Tamil Nadu4 (supra), the

Apex Court had held that there can be no hard-and-fast rule as to the

measure of reasonable time within which a representation needs to be

considered and each case has to be considered from the facts of the case

and if there is no negligence or callous inaction or avoidable red-tapism on

the facts of a case, the Court would not interfere. It was noted in the said

case that having filed the Writ Petition even before the order of rejection

was served, the detenu cannot make a grievance that the State had not

explained the position as to how his representation was dealt with.

[(2006) 5 SCC 676] 2024:KER:77292

13. Insofar as the representation submitted on 09.09.2024 is

concerned, the Government has considered the same and the order was

communicated to the detenu on 13.09.2024 as is borne out from Ext.P8.

We are not impressed with the contention of the learned counsel that after

having rendered its opinion based on which confirmation order was passed

by the Government and even after the rejection of the earlier writ petition

by this Court, the Advisory Board is bound to consider the representation

dated 9.9.2024 independently. The Advisory Board constituted under

Section 8 considers the reference made to it by the government and it is in

terms of Section 10 that the Advisory Board furnishes its opinion within 9

weeks. It is based on the opinion furnished by the Advisory Board that the

Government decides whether the detention is to be confirmed or not.

Under Section 13, the Government is empowered to revoke or modify the

detention order at any point of time. In that view of the matter, it cannot

be argued that the representation dated 09.09.2024 should also be

independently considered by the Board. The authority which is conferred

with the power to revoke or modify the order is the Government and the

Government has considered the representation dated 09.09.2024 and has 2024:KER:77292

passed the order on 13.09.2024. In that view of the matter, none of the

contentions raised by the petitioner in this writ petition can be accepted.

14. The next contention raised by the learned counsel is that

there is no justification in ordering the maximum period of six months.

This according to the petitioner, is without proper application of mind by

the detaining authority. The said contention raised by the learned counsel

cannot be accepted.

15. In Vijayakumar v. Union of India5, a contention was taken

before the Supreme Court that while passing an order of detention, the

Government had not applied its mind, while confirming the detention of

the detenu for the maximum period of one year from the date of

detention, as prescribed in Section 10 of the Act. It was also contended

that some reason ought to have been given, as to why the maximum

period of detention is imposed. While repelling the said contention, the

Apex Court in Paragraph 29 of the judgment had observed as under:

"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

[(1988 KHC 924)] 2024:KER:77292

period of one year from the date of detention as prescribed in Section 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. Section 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. Section 10 does not provide that in imposing the maximum period of detention, any reason has to be given. In confirming 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 Section 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 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."

In the concurring opinion, it was observed in paragraph no.38 as

under:

"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 2024:KER:77292

expression "as it thinks fit" in Section 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 Section 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. Section 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."

It was held that the authority is not required to give any special

reason either for fixing a shorter period or for fixing the maximum period

prescribed under the statute. 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. The

KAAP Act also provides for revocation of the detention order and says that

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 2024:KER:77292

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.

In view of the above discussion, the petitioner is not entitled to the