Kerala High Court
Hashmi vs State Of Kerala on 7 August, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
2025:KER:59654
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 7TH DAY OF AUGUST 2025 / 16TH SRAVANA, 1947
WP(CRL.) NO. 590 OF 2025
CRIME NO.1173/2024 OF Kodungallur Police Station, Thrissur
PETITIONER:
HASHMI
AGED 41 YEARS
W/O. SHEFEEQ @ EKKI, PUTHUMANA HOUSE,
MACHANTHURUTH, VADAKKEKKARA.P.O., PARAVUR,
ERNAKULAM DIST., PIN - 683513
BY ADVS.
SRI.M.SHAJU PURUSHOTHAMAN
SRI.K.S.RAJESH
SRI.M.K.FAISAL
SMT.SINDHU K.S.
RESPONDENTS:
1 STATE OF KERALA
REP.BY THE ADDL. CHIEF SECRETARY, HOME
DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM, PIN -
695001
2 THE DISTRICT MAGISTRATE
THE DISTRICT & SESSIONS COURT, 3RD FLOOR, NEW
COURT COMPLEX, PARK AVENUE ROAD, ERNAKULAM DIST.,
PIN - 682011
3 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, MUNNAR ROAD, ALUVA,
ERNAKULAM DIST., PIN - 683101
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BY ADVS.
SRI.K.A.ANAS, GOVERNMENT PLEADER
THIS WRIT PETITION (CRIMINAL) HAVING BEEN COME UP
FOR HEARING 07.08.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The petitioner is the wife of Shefeeq @ Ekki ('detenu' for the
sake of brevity) and her challenge in this Writ Petition is directed
against Ext.P1 order of detention dated 12.02.2025 passed by the 2nd
respondent under Section 3(1) of the Kerala Anti-Social Activities
(Prevention) Act, 2007 ('KAA(P) Act' for brevity). The said order
stands confirmed by the Government, vide order dated 24.04.2025,
and the detenu has been ordered to be detained for a period of six
months with effect from the date of detention.
2. The records reveal that a proposal was submitted by the
District Police Chief, Ernakulam Rural on 27.11.2024 seeking initiation
of proceedings against the petitioner's husband under the KAA(P) Act
before the jurisdictional authority, the 2nd respondent. For the
purpose of initiation of the said proceedings, the detenu was classified
as a 'known rowdy' as defined under Section 2p(iii) of the KAA(P) Act.
Altogether four cases in which the petitioner's husband was involved
have been considered by the detaining authority for passing the
impugned order of detention.
3. The case registered with respect to the last prejudicial
activity is crime No.1173/2024 of Kodungallur Police Station, alleging
the commission of offences punishable under Sections 126(2), 310(2),
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311, 312, 61(1), 62 and 249 of Bharatiya Nyaya Sanhita (for short
"BNS") and the detenu is arrayed as the 3rd accused in the said case.
4. We heard Sri. Shaju Purushothaman M., the learned
counsel appearing for the petitioner and Sri. K.A. Anas, the learned
Government Pleader.
5. The learned counsel for the petitioner would submit that
Ext.P1 order is passed without proper application of mind and without
adhering to the procedural formalities mentioned under the KAA(P)
Act. The learned counsel urged that there is non-compliance with the
procedure mentioned under Section 7(2) of the KAA(P) Act. According
to the learned counsel, though the grounds of detention, specifying the
details of the cases reckoned for passing the impugned order was
furnished to him, the legible copies of the documents pertaining to the
case registered with respect to the last prejudicial activity were not
served on him. According to him, the lapse on the part of the detaining
authority in not serving the legible copies of the relied upon
documents prejudiced him as he could not file an effective
representation against the detention order before the Advisory Board.
6. In response, the learned Government Pleader submitted
that the order of detention was passed after complying with all the
necessary legal formalities and after proper application of mind.
According to the learned Government Pleader, there is no delay in
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mooting the proposal for initiation of proceedings and in passing the
order of detention. Moreover, he would submit that the copies of all
the relevant records and the grounds of detention were furnished to
the detenu, and the detenu was duly informed of his right to file
representation against the detention order before the Government as
well as the Advisory Board.
7. From the rival contentions raised, it is decipherable that
the main dispute in this writ petition is regarding the compliance of
the procedure mentioned under Section 7(2) of the KAA(P) Act.
Undisputedly, when a person is arrested in pursuance of a detention
order, it is obligatory on the part of the arresting officer to supply a
copy of the said order to the detenu. Furthermore, Section 7(2) of the
KAA(P) Act, makes it mandatory that the grounds of detention shall be
furnished to the detenu, specifying the instances of offences with
copies of relevant documents. Moreover, the detenu must be apprised
of his right to file representation against the detention order before
the Government as well as the Advisory Board. Only when copies of
relied-upon documents are duly served, the detenu would get an
effective opportunity to file a representation before the Advisory
Board.
8. As already mentioned, the main grievance of the petitioner is
that the copies of the relied-upon documents served on the detenu
were illegible. In order to verify the veracity of the said contention, we
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have examined the case file made available to us by the learned
Government Pleader. On verification, we are convinced that the copies
of several relied-upon documents, which find a place in the case file,
are not legible. Moreover, a perusal of the representation made by the
detenu before the Advisory Board, reveals that in the said
representation also it is mentioned that the copy of the relied-upon
documents furnished to him are not legible and hence he is
handicapped from filing an effective representation.
9. The obligation of the detaining authority to furnish legible
copies of relied-upon documents to the detenu is not a mere formality.
Only when the said procedure is scrupulously complied with, the
detenu can file an effective representation before the Advisory Board
and the Government. The right of the detenue to file an effective
representation before the Government as well as the Advisory Board is
a constitutional right under Article 22(5) and also a statutory right.
Therefore, it is the duty of the detaining authority to ensure that the
copies of the impugned order, as well as the relevant documents which
are furnished to the detenu at the time of effecting his arrest are
legible so as to enable him to approach the Advisory Board as well as
the Government, to make an effective representation.
10. In the case at hand, it is established that the copies
supplied on the detenu were not legible making him incapacitated to
file an effective representation. The said serious lapse is a ground to
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interfere with the impugned order. An order of detention, under
KAA(P) Act has wide ramifications as far as the personal as well as the
fundamental rights of an individual are concerned. Therefore, the
detaining authority should have acted with much alacrity in ensuring
that all the procedural formalities are adhered to.
11. In the result, this Writ Petition is allowed and Ext.P1 order
of detention is set aside. The Superintendent of Central Prison, Viyyur,
Thrissur is directed to release the detenu, Sri. Shefeeq @ Ekki
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, Thrissur, forthwith.
Sd/-
DR. A.K.JAYASANKARAN NAMBIAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
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APPENDIX OF WP(CRL.) 590/2025
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF THE ORDER OF DETENTION
PASSED BY THE 2ND RESPONDENT
DT.12.2.2025
Exhibit P2 THE TRUE COPY OF THE FIR IN CRIME NO.
1173/2024 REGISTERED BY KODUNGALLUR
POLICE STATION DT.31.8.2024
Exhibit P3 THE TRUE COPY OF THE ORDER OF APPROVAL
ISSUED BY 1ST RESPONDENT DT. 4.3.2025
Exhibit P4 THE TRUE COPY OF THE REPRESENTATION
FILED BY THE DETENUE BEFORE ADVISORY
BOARD DT. 7.4..2025
Exhibit P5 THE TRUE COPY OF THE BAIL ORDER PASSED
BY THE JFCM COURT, KODUNGALLUR DT.
4.1.2025
Exhibit P6 The true copy of the Report filed by
the 3rd respondent before the Dist.
Collector, Ernakulam dt.27.11.2024
