FATHIMA FATHUL P v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V & THE HONOURABLE MR. JUSTICE G.GIRISH THURSDAY, THE 18TH DAY OF JULY 2024 / 27TH ASHADHA, 1946 WP(CRL.) NO. 734 OF 2024 PETITIONER: FATHIMA FATHUL P AGED 20 YEARS D/O MUHAMMED ALI, PALLATH VEEDU, IRUMBAKASSERY, CHALISSERY, PALAKKAD, PIN - 679533 BY ADVS. M.H.HANIS P.M.JINIMOL T.N.LEKSHMI SHANKAR NANCY MOL P. ANANDHU P.C. NEETHU.G.NADH RESPONDENTS: 1 2 3 4 5 STATE OF KERALA REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE, PALAKKAD DISTRICT, PIN - 678001 THE DISTRICT POLICE CHIEF, PALAKKAD DISTRICT, PIN - 678001 THE CHAIRMAN ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA NAGAR, ELAMAKKARA,ERNAKULAM DIST, PIN - 682026 THE SUPERINTENDENT OF JAIL, CENTRAL JAIL, VIYYUR,THRISSUR DIST, PIN - 670004 WP(Crl) Nos.732 & 734 of 2024 4 BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) SRI KA ANAZ, PUBLIC PROSECUTOR THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 18.07.2024 ALONG WITH WP(CRL) NO.732 OF 2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(Crl) Nos.732 & 734 of 2024 5 JUDGMENT Raja Vijayaraghavan, J. The petitioner herein is the sister of Sri.Jubair and Sri.Junaid, the detenus undergoing detention under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007 (‘KAAPA’ for brevity). The detention orders were issued on 5.4.2024 and they are undergoing detention from

9.4.2024.

2. Sri. M.H.Hanis, the learned counsel appearing for petitioner, submitted that the constitutional right of the detenus under Article 22 (4) of the Constitution of India has been violated as there has occurred a delay of more than 3 months in issuing the order confirming the detention under section 10(4) of the KAAPA. The learned counsel has relied on the law laid down by this Court in Malathy Ravi. v. State of Kerala1 and that of the Apex Court in Deb Sadhan Roy v. State of West Bengal2 and it is urged that the failure to pass the confirmation order within a period of three months would violate Article 22(4) of the Constitution of India. It is submitted that in the instant case, the detention order was issued on 5.4.2024, the same was executed on 1 2 [2023 (6) KHC 201] [1972 (1) SCC 308] WP(Crl) Nos.732 & 734 of 2024 6

9.4.2024. The Advisory Board has submitted a report on 31.5.2024. However, the confirmation order was passed only on 11.7.2024, clearly beyond a period of three months reckoned from the date of execution of the detention order.

3. We have heard Sri. K.A.Anaz, the learned Public Prosecutor, who does not dispute that the order of confirmation was issued only on

11.7.2024.

4. We have considered the submissions advanced and have perused the entire records.

5. Section 3 of the KAAPA reads as under: Section 3: Power to make orders for detaining Known Goondas and Known Rowdies: (1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that, with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that WP(Crl) Nos.732 & 734 of 2024 7 during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (3) When any order is made under this section by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government.

6. Under Sub-section (3) of the KAAPA, an order of detention made by the authorized officer under Sub-section (2) is to be reported forthwith in the manner prescribed and it is further stated that no such order shall remain in force for more than 12 days excluding public holidays from the date of detention of such known goonda or known rowdy unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department, if generally so authorized in this regard by the Government.

7. Under Section 9 of the KAAPA, in every case where a WP(Crl) Nos.732 & 734 of 2024 8 detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected, and, in the case where the order has been made by an authorized officer, the report by such officer under sub-section (3) of section 3.

8. Section 10 of the KAAPA provides for the procedure to be followed by the Advisory Board and further action. Sub-section (4) stipulates that in every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of the person concerned, Government shall revoke the detention order and cause the person to be released forthwith.

9. Article 22 of the Constitution of India provides for the Constitutional mandate as regards protection against arrest and detention. The said provision reads as under: Article 22: Protection against arrest and detention in certain WP(Crl) Nos.732 & 734 of 2024 9 No law providing for preventive detention shall authorise cases.-- (1) (2) (3) (4) the detention of a person for a longer period than three months unless-- (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this subclause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under subclause (b) of clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7)."

10. In the instant case, Ext.P1 is the order of detention which was issued on 5.4.2024. Undisputedly, the detenus were arrested on

9.4.2024. The question as to whether the confirmation order has to be passed within three months from the date of execution of the order of detention was considered by the Apex Court in Deb Sadhan Roy (supra), wherein it was held as under: WP(Crl) Nos.732 & 734 of 2024 10 "7..................In a question whether confirmation and extension has to be made by the appropriate Government within a reasonable period may arise for consideration, but in any case failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation. Any subsequent action by the appropriate Government after the three months cannot have the effect of extending the period of detention..................It would be meaningless to suggest that the confirmation of the Board's opinion can take place beyond three months when the period of detention has come to an end and has not been extended by the want of it. Looking at it in a different way what these provisions amount to is that no person can be detained for any period beyond three months or for any period thereafter upto 12 months unless the Board's opinion is confirmed within three months."

11. In Joydeb Gorai v. State of W.B.3, after referring to the law laid down in Ujjal Mandal v. State of West Bengal [1972) 1 SCC 456] and specifically to page 459 of the report and it was noted as under: “To put the matter in a nut-shell: the State Government has power under the Act to detain a person without trial beyond a period of three months, but limited to a period of one year. That power the State Government may exercise on receipt of the opinion of the Board that there is sufficient cause for the detention. When the State Government received that opinion, it has still the option to exercise the power and to continue the detention beyond the 3 1972 (2) SCC 417 WP(Crl) Nos.732 & 734 of 2024 11 period of three months or not. Confirmation is the exercise of the power to continue the detention after the expiry of three months. Unless that power is exercised within the period of three months from the date of detention, the detention after the expiry of that period would be without the authority of the law.”

12. In Malthy Ravi (supra), this Court relying on the law laid down by the Apex Court have held that the detention would become illegal upon the expiry of three months period from the date of detention for want of confirmation and continuance. In the case on hand, as the confirmation order was passed only on 11.7.2024 well beyond the period of three months, the continued detention of the detenus is illegal. These writ petitions are allowed and it is held that the continued detention of the detenus are illegal. There will be a direction to the Superintendent of Jail, Central Prison, Viyyur to release the detenus, Sri.Jubair and Sri.Junaid, forthwith if they are not required in connection with any other case. Sd/- RAJA VIJAYARAGHAVAN V JUDGE Sd/- G. GIRISH JUDGE IAP WP(Crl) Nos.732 & 734 of 2024 12 APPENDIX OF WP(CRL.) 732/2024 PETITIONER’S EXHIBITS: Exhibit -P1 TRUE A NO. DCPKD/14632/2023-S1 DATED 05.04.2024 OF THE 2ND RESPONDENT ORDER COPY THE OF WP(Crl) Nos.732 & 734 of 2024 13 APPENDIX OF WP(CRL.) 734/2024 PETITIONER’S EXHIBITS: Exhibit -P1 TRUE A NO. DCPKD/14441/2023-S1 DATED 05.04.2024 OF THE 2ND RESPONDENT ORDER COPY THE OF