IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(Crl.).No. 160 of 2008(S)
1. SHAHUL HAMEED. AGED 57, S/O.ISMAIL
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. THE ADDITIONAL CHIEF SECRETARY
3. THE SUPERINTENDENT OF POLICE
4. THE SUPERINTENDENT OF POLICE
5. S.I. OF POLICE
6. THE DISTRICT MAGISTRATE/
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :09/06/2008
O R D E R
P.R.Raman &
T.R. Ramachandran Nair, JJ.
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W.P.(Crl.) No.160 of 2008-S
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Dated this the 9th day of June, 2008.
JUDGMENT
Ramachandran Nair, J.
The petitioner is the father of one Bava @ Shabeek. The said person
was arrested on 21.3.2008 as per an order of detention issued by the District
Magistrate and District Collector, Thrissur. Alleging that the detention is
illegal, the petitioner has approached this court for the issuance of a writ of
habeas corpus.
2. It is pointed out by the learned counsel for the petitioner that the
order of detention is bad, as the same violates Article 22 of the Constitution
of India and the relevant provisions of Kerala Anti-social Activities
(Prevention) Act, 2007. Reliance is also placed on the decision of a
Division Bench of this court in Anitha Bruse v. State of Kerala and
others (ILR 2008 (2) Ker.408).
3. The Division Bench, in Anitha Bruse’s case (supra), analysed the
requirements of Article 22 of the Constitution of India as well as the
provisions of Act. The entire scheme has been explained in paragraph 14 of
W.P.Cr.160/2008 2
the judgment in the following terms:
“Thus, on a conjoint reading of Sections 3(3), 9, 10(1), 10(4) and
Section 12 of the Act, one can understand that the initial order
passed by the Government or the Officer authorised under sub-
section (2) of Section 3, will remain only for a maximum period of
12 days unless the same is approved by the Government and the
further period of detention is fixed by the Government under
Section 10(4) on the basis of the opinion given by the Advisory
Board under Section 10(1) and (3) within nine weeks from the date
of detention of the persons concerned, for which the Government
has to place the detention order within three weeks from the date of
detention. That means the final order of the Government on the
basis of the Advisory Board will have to be issued within nine
weeks or 63 days. Thus, the final order, that may be issued by the
Government by which it decides to approve the detention and to fix
the period, shall not exceed six months from the date of detention in
view of Section 12 of the Act. It is relevant to note that the periods
fixed in these Sections are mandatory in nature and any lapse in
taking steps or complying with the formalities within the time limit
fixed by the above provisions will entail the detention as illegal.
Thus, on a scrutiny of the scheme envisaged by the Act, it can be
seen that ample provisions and safeguards have been incorporated
so as to safeguard the fundamental right of the citizens, against
illegal arrest and detention, as contemplated by Article 22(4)
especially, Article 22(4)(a) of the Constitution of India.”
W.P.Cr.160/2008 3
4. Herein, in Ext.P1 order of detention the period of detention has
been fixed as six months that too prior to the consideration of the matter by
the Board. The same has been passed by the District Magistrate, Thrissur.
Going by the dictum laid down in Anitha Bruse’s case (supra), the same is
against the scheme of the Act itself besides being in violation of Article 22
(4) of the Constitution of India.
5. Hence, going by the dictum laid down in the above case, we hold
that Ext.P1 is unsustainable and the same is quashed. There will be a
direction to the respondents to release the petitioner’s husband Shri Subash
forthwith, if he is not wanted in any other case.
The writ petition is allowed as above. There will be no order as to
costs.
( P.R.Raman, Judge.)
(T.R. Ramachandran Nair, Judge.)
kav/