High Court Kerala High Court

Shahul Hameed. Aged 57 vs State Of Kerala on 9 June, 2008

Kerala High Court
Shahul Hameed. Aged 57 vs State Of Kerala on 9 June, 2008
       

  

  

 
 
  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
                      - - - - -- - - - - - - - - - - - - - - - - - - - -
                    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/