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 2025:KER:29269 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 W.P.(Crl) No.156 of 2025 3 2025:KER:29269 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 5 [2024 (4) KHC 140] 4 [2024 KHC 646] 3 [2023 SCC OnLine SC 374] 2 1970 AIR 675 1 [1969 KHC 614] W.P.(Crl) No.156 of 2025 4 2025:KER:29269 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 6 1991 (1) SCC 476 W.P.(Crl) No.156 of 2025 5 2025:KER:29269 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 7 [(1975) 3 SCC 198] W.P.(Crl) No.156 of 2025 6 2025:KER:29269 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 8 2020 SCC ONLINE SC 288 W.P.(Crl) No.156 of 2025 7 2025:KER:29269 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: 10 [(1996) 3 SCC 194] 9 [(1999) 1 SCC 417) W.P.(Crl) No.156 of 2025 8 2025:KER:29269 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 W.P.(Crl) No.156 of 2025 9 2025:KER:29269 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. 11 [(1980) 2 SCC 275] W.P.(Crl) No.156 of 2025 10 2025:KER:29269 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 W.P.(Crl) No.156 of 2025 11 2025:KER:29269 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