Kerala High Court
Rasna A.K vs State Of Kerala on 4 April, 2025
Author: V 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 P. V. BALAKRISHNAN
FRIDAY, THE 4TH DAY OF APRIL 2025 / 14TH CHAITHRA, 1947
WP(CRL.) NO. 156 OF 2025
PETITIONER:
RASNA A.K
AGED 32 YEARS
W/O SUJITHMON, MADHUMANDIRATHIL HOUSE,
KODANNUR, PERINGOME AMSAM,
PAYYANNUR TALUK, PERINGOME POLICE STATION,
KANNUR DISTRICT,, PIN - 670307
BY ADVS.
VISHAK K.V.
ANU T.H.
RENJITH K.R.
RENJITH B.MARAR(K/000240/2003)
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY TO GOVERNMENT,
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
KANNUR DISTRICT, PIN - 670001
3 THE DISTRICT POLICE SUPERINTENDENT
KANNUR RURAL, PIN - 670002
4 SHO PERINGOME POLICE STATION
KANNUR DISTRICT, PIN - 670353
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
OTHER PRESENT:
SRI ANAS K A, PP.
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
04.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(Crl) No.156 of 2025
2
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JUDGMENT
Raja Vijayaraghavan V., J.
The petitioner herein is the wife of Sri. Sujithmon, against whom an order
of detention has been issued by the 2nd respondent under Section 3(1) of the
Kerala Anti-Social Activities (Prevention) Act, 2007 [for short "KAA(P) Act"]. The
above order is under challenge in this petition.
2. On account of the involvement of the detenu in four crimes, viz.,
Crime No.42/2018, Crime No.355/2020, Crime No.266/2024 and Crime
No.540/2024 of the Peringome Police Station, proceedings under KAA(P) Act was
initiated.
3. A proposal was submitted by the 3rd respondent before the 2nd
respondent on 07.10.2024 seeking initiation of proceedings, and after following
the procedure, Ext.P2 order of detention was issued by the 2nd respondent on
28.11.2024. The order of approval was issued by the Government on
10.12.2024. The matter was referred to the Advisory Board by the Government
on 12.12.2024, and the opinion of the Advisory Board was received on
29.01.2025. Based on the opinion received from the Advisory Board, the
detention order was confirmed by the Government on 03.02.2025. In the
meantime, separate representations were filed by the detenu before the
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Government on 04.12.2024 and the Advisory Board on 09.12.2024 seeking
revocation of the order of detention. The representation dated 04.12.2024 was
considered by the Government, and the order was communicated to the detenu
on 06.02.2025.
4. Though various contentions are raised in the writ petition to assail
the order of detention, Sri. Renjith B. Marar, the learned counsel appearing for
the petitioner, pressed only one ground before us. According to the learned
counsel, the representation submitted by the detenu on 04.12.2024, even before
the matter was forwarded to the Advisory Board, was ultimately considered by
the Government only on 06.02.2025 after the confirmation of the order of
detention. It is urged that in view of the law laid down in Pankaj Kumar
Chakrabarty v. State of West Bengal 1, Jayanarayan Sukul v. State of
West Bengal2, Pramod Singla vs. Union of India3, Kumari A.V. vs. State
of Kerala 4 and Geetha vs. State of Kerala5, the undue and inordinate delay
in consideration of the representation would violate the constitutional rights of
the detenu to have an expeditious consideration of his representation.
5. The learned Public Prosecutor, in response, referred to the
observations made by the Apex Court in K.M.Abdulla Kunhi and B.L. Abdul
[1969 KHC 614]
1970 AIR 675
[2023 SCC OnLine SC 374]
[2024 KHC 646]
[2024 (4) KHC 140]
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Khader vs. Union of India and others 6, and it is submitted that the
contentions raised by the learned counsel cannot be sustained under law.
According to the learned Public Prosecutor, though the representation was
received by the Government on 04.12.2024, the opinion of the Advisory Board
was received only on 29.01.2025, and immediately thereafter, the confirmation
order was passed on 03.02.2025. The representation was then considered, and
the order was communicated to the detenu on 06.02.2025. It is urged that there
is no undue delay in considering the representations, and hence, the contentions
advanced by the learned counsel cannot be sustained.
6. We have carefully considered the submissions advanced and have
gone through the entire records.
7. The fact that the detenu submitted a representation before the
Government on 04.12.2024, and the same was considered and the order was
communicated to the detenu only on 06.02.2025, that too, after the confirmation
of the order of detention, is not disputed.
8. Under Section 7 of the KAA(P) Act, as soon as the detenu is
arrested in pursuance of the detention order, the arresting officer is required to
read out the detention order and give him a copy of the same. The grounds of
detention have to be furnished to the detenu within five days of the detention
1991 (1) SCC 476
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and he is to be informed in writing, under acknowledgement, of his right to
represent the Government and before the Advisory Board against his detention.
Under section 7(3) of the KAA(P) Act, the Superintendent of the Jail is also
required to afford reasonable assistance to the detenu to make a representation
against the detention order to the Government or to the Advisory Board.
9. Article 22(5) of the Constitution of India confers a right to the
person detained to make a representation against the order of detention. The
representation can be made not only to the Advisory Board but also to the
detaining authority, i.e., the authority that has made the order of detention or
the order for continuance of such detention. Though clause (5) of Article 22 does
not in positive language provide as to whom the representation is to be made
and by whom, when made, it is to be considered, the expressions "as soon as
may be" and "the earliest opportunity" in that clause clearly indicate that the
grounds are to be served and the opportunity to make a representation are
provided for to enable the detenu to show that his detention is unwarranted.
10. A Constitution Bench of the Apex Court in Haradhan Saha v.
State of West Bengal and Ors.7, held that there is an obligation on the State
to consider the representation to ascertain whether the order is in conformity
with the power under the law. The Advisory Board, on the other hand, considers
[(1975) 3 SCC 198]
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whether in the light of the representations, there is sufficient cause for
detention. It was further held that if the representation of the detenu is received
before the matter is referred to the Advisory Board, the detaining authority
should consider the representation.
11. In Jayanarayan Sukul v. State of W.B. (supra), it was held by
the Apex Court that it is established beyond any measure of doubt that the
appropriate authority is bound to consider the representation of the detenu as
early as possible. The reason for immediate consideration of the representation is
too obvious to be stressed. The personal liberty of a person is at stake. Any
delay would not only be an irresponsible act on the part of the appropriate
authority but also unconstitutional because the Constitution enshrines the
fundamental right of a detenu to have his representation considered and it is
imperative that when the liberty of a person is in peril immediate action should
be taken by the relevant authorities.
12. In Ankit Ashok Jalan v. Union of India8, it was held by the
Apex Court that it is well accepted that the representation must be considered
with utmost expedition; and the power of the Government is completely
independent of the power of the Advisory Board. The scope of consideration is
also qualitatively different and therefore, there is no reason why the
2020 SCC ONLINE SC 288
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consideration by the Government must await the decision by the Advisory Board.
13. In Rajammal Vs. State of Tamilnadu9, the Apex Court, in the
context of delay in consideration of the representation by the detenu reiterated
the observations in Kundanbhai Dulabhai Shaikh v. District Magistrate,
Ahmedabad10, wherein it was observed as under:
"6. xxxxx xxxxx xxxx xxxxx
21. In spite of law laid down above by this Court
repeatedly over the past three decades, the Executive,
namely, the State Government and its officers continue to
behave in their old, lethargic fashion and like all other
files rusting in the Secretariat for various reasons
including red-tapism, the representation made by a
person deprived of his liberty, continue to be dealt with in
the same fashion. The Government and its officers will
not give up their habit of maintaining a consistent attitude
of lethargy. So also, this Court will not hesitate in
quashing the order of detention to restore the 'liberty and
freedom' to the person whose detention is allowed to
become bad by the Government itself on account of his
representation not being disposed of at the earliest."
It was thereafter observed as under:
[(1999) 1 SCC 417)
[(1996) 3 SCC 194]
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7. It is a constitutional obligation of the Government to
consider the representation forwarded by the detenu without any
delay. Though no period is prescribed by Article 22 of the
Constitution for the decision to be taken on the representation,
the words "as soon as may be" in clause (5) of Article 22 convey
the message that the representation should be considered and
disposed of at the earliest. But that does not mean that the
authority is pre-empted from explaining any delay which would
have occasioned in the disposal of the representation. The court
can certainly consider whether the delay was occasioned due to
permissible reasons or unavoidable causes.
xxxxxx xxxxxx xxxxxx
8. The position, therefore, now is that if delay was caused
on account of any indifference or lapse in considering the
representation, such delay will adversely affect further detention
of the prisoner. In other words, it is for the authority concerned
to explain the delay, if any, in disposing of the representation. It
is not enough to say that the delay was very short. Even longer
delay can as well be explained. So the test is not the duration or
range of delay, but how it is explained by the authority
concerned.
14. In the case on hand, there is no explanation why the
representation submitted by the detenu on 04.12.2024 was kept in cold storage
and the same was considered, and orders were passed only on 06.02.2025, that
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too, after the confirmation order. The respondents have not been able to explain
the delay of more than two months in considering the representation.
15. In Frances Coralie Mullin v. W.C. Khambra11, the Apex Court
reminded the courts of their role in cases of preventive detention, and it was
observed that it has to be one of eternal vigilance. No freedom is higher than
personal freedom and no duty higher than to maintain it unimpaired. The Court's
writ is the ultimate insurance against illegal detention. The Constitution enjoins
conformance with the provisions of Article 22 of the Constitution of India and the
Court exacts compliance. Article 22(5) vests in the detenu the right to be
provided with an opportunity to make a representation. Here, the Law Reports
tell a story and teach a lesson. It is that the principal enemy of the detenu and
his right to make a representation is neither high-handedness nor
mean-mindedness but the casual indifference, the mindless insensibility, the
routine and the red tape of the bureaucratic machine.
16. In view of the discussion above, we are of the view that the grave
and callous inaction on the part of the respondents has resulted in the violation
of the constitutional rights of the detenu. We hold the continued detention of
the detenu in terms of the detention orders to be illegal, invalid and
unconstitutional.
[(1980) 2 SCC 275]
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This Writ Petition is allowed.
a) We hold that the continued detention of the detenu on the strength
of Ext.P2 and P6 orders is illegal.
b) There will be a direction to the concerned Superintendent, to
release the detenu, Sri. Sujithmon, forthwith, if his detention is not required in
connection with any other case.
c) The Registry is directed to communicate the order to the
Superintendent of the concerned prison forthwith.
Sd/-
RAJA VIJAYARAGHAVAN V.
JUDGE
Sd/-
P.V.BALAKRISHNAN
JUDGE
Bng & PS/04/04/25
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APPENDIX OF WP(CRL.) 156/2025
PETITIONER EXHIBITS
EXHIBIT P1 A TRUE COPY OF THE DOCUMENTS
PROVIDED TO THE DETENUE AT THE
TIME OF HIS ARREST
EXHIBIT P2 A TRUE COPY OF ORDER NO. DCKNR/
12834/ 2024-SS3 DATED 28/11/2024
PASSED BY THE 1ST RESPONDENT
EXHIBIT P3 A TRUE COPY OF GROUNDS OF
DETENTION SERVED ON THE DETENUE IN
ORDER NO. DCKNR/12834/2024-SS3
DATED 28/11/2024
EXHIBIT P4 A TRUE COPY OF MEMO FOR EXECUTING
ORDER OF DETENTION DATED
28/11/2024 OF THE 1ST RESPONDENT
EXHIBIT P5 A TRUE COPY OF ARREST MEMO DATED
01/12/2024 ISSUED BY THE STATION
HOUSE OFFICER, PERINGOME POLICE
STATION
EXHIBIT P6 A TRUE COPY OF G.O (RT) NO.375/
2025/HOME DATED 03/02/2025 ISSUED
BY THE OFFICE OF 1ST RESPONDENT
