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2016 DIGILAW 1008 (KER)

SUSHA v. STATE OF KERALA

2016-11-21

K.ABRAHAM MATHEW, K.T.SANKARAN

body2016
JUDGMENT : K.T.Sankaran, J. The questions involved in this Writ Petition are the following: (1) For computing the period of "twelve days, excluding public holidays, from the date of detention," under sub-section (3) of Section 3 of the Kerala Anti-social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA') whether Sundays can be excluded? (2) When the detenu submits a representation to the Advisory Board with a request to forward the representation to the Government for consideration of the representation by the Government independently and expeditiously without waiting for the opinion of the Advisory Board, whether non-consideration of the representation by the Government would vitiate the continued detention of the detenu? 2. The detenu, Sreejith @ Unni, was detained on 21.1.2016 in execution of the order of detention dated 14.1.2016 issued by the District Magistrate, Thiruvananthapuram under Section 3(1) of the KAAPA. The Government issued the order of approval under Section 3(3) of the KAAPA on 4.2.2016, which was beyond the period of fifteen days from the date of detention. 3. The present order of detention is the 4th one passed against the detenu. The first order of detention dated 5.9.2011 was set aside in W.P.(Crl.) No.505 of 2011 on 7.2.2012. The second order of detention was passed on 4.2.2013. The detenu completed the term of detention as per that order. The third order of detention was passed on 25.1.2015, which was set aside in W.P.(Crl) No.192 of 2015 on 19.8.2015. 4. The points raised above are answered below. Point No.1: The order of approval is evidently beyond the period of fifteen days from the date of detention. It is also not in dispute that 24.1.2016 and 31.1.2016 were Sundays and 26.1.2016 was the Republic Day. These days were admittedly holidays. It is not in dispute that if these three days were excluded, the order of approval was well within time. The contention of the learned counsel for the petitioner is that though Sundays are holidays, they are not public holidays as it was not so declared. For excluding public holidays under sub-section (3) of Section 3, the said public holidays should be declared public holidays. The contention of the learned counsel for the petitioner is that though Sundays are holidays, they are not public holidays as it was not so declared. For excluding public holidays under sub-section (3) of Section 3, the said public holidays should be declared public holidays. The petitioner produced Ext.P14 news item in Hindustan Times wherein it is mentioned as follows: "The department of Personnel and Training, Government of India in its reply dated 18th July, 2012 signed by B. Bandopadhyay, under secretary stated, "As per records available in JCA section of Department of Personnel & Training, there is no information regarding declaration of Sunday as holiday." 5. The petitioner has produced copy of the Office Memorandum dated 21.5.1985, issued by the Department of Personnel & Training, Government of India, whereby the Government of India introduced 5-day week in the civil administrative offices of the Government of India with effect from 3rd June, 1985. It is mentioned therein that such Government offices would work for five days in a week from Monday to Friday, with all Saturdays as closed. The learned counsel for the petitioner pointed out that this Office Memorandum does not declare Sunday as a public holiday. 6. Section 25 of the Negotiable Instruments Act provides that when the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day. The Explanation to Section 25 reads as follows: "Explanation.-- The expression "Public holiday" includes Sundays and any other day declared by the Central Government, by notification in the Official Gazette, to be a public holiday." 7. The learned Government Pleader brought to our notice the Government Order, G.O.(P) No.265/2015/GAD, Thiruvananthapuram, dated 15th October, 2015, whereby the Government of Kerala declared that in addition to Sundays, the days mentioned therein shall be public holidays. The relevant part of the Notification reads as follows: "Under the explanation to Section 25 of the Negotiable Instruments Act, 1881 (Central Act 26 of 1881) read with the Notification of the Government of India, Ministry of Home Affairs No.20/25/56/Pub-1 dated 8th June, 1957, the Government of Kerala are hereby pleased to declare that in addition to Sundays, expressly defined as Public Holidays in the said explanation, the following days shall be Public Holidays under N.I. Act in Kerala for the Calendar year 2016." 8. The expression used in Section 3(3) of the KAAPA is "excluding public holidays". The exclusion of public holidays while computing the period of twelve days is with a specific purpose. When an order of detention is made by an authorised officer under sub-section (2) of Section 3, it is mandatory that it is approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government. Section 3(3) mandates that no such order of detention shall remain in force for more than twelve days, excluding public holidays, from the date of detention, unless, in the meantime, it has been approved. While stating the period as twelve days, it is specifically provided in sub-section (3) of Section 3 that it shall be excluding public holidays. A maximum period of twelve days is provided for approval of the order of detention. The consequence of not passing an order of approval within that period would be release of the detenu. In that context, the law makers thought that the period of twelve days should be clear twelve days. That was why public holidays were excluded. It is well known that Sundays are public holidays. The Explanation to Section 25 of the Negotiable Instruments Act states that the expression "Public holiday" includes Sundays. In the Notification dated 15th October, 2015, the Government of Kerala declared that in addition to Sundays, expressly defined as public holidays in the Explanation to Section 25 of the Negotiable Instruments Act, the other days mentioned in the Notification shall be public holidays under the Negotiable Instruments Act in Kerala. When a day is declared as public holiday by the Government under the Negotiable Instruments Act, it shall be taken as a declared public holiday. Even going by the Government Calendar, the dates in red ink indicate public holidays and it is so specifically recorded in the Government of Kerala Calendar. If the contention put forward by the learned counsel for the petitioner is accepted, it would defeat the very purpose of excluding public holidays under Section 3(3) of the KAAPA. Sundays are public holidays for Government offices. The intention of the law makers was to exclude public holidays while computing the period of twelve days. If so, the contention put forward by the learned counsel for the petitioner is not liable to be accepted. 9. Sundays are public holidays for Government offices. The intention of the law makers was to exclude public holidays while computing the period of twelve days. If so, the contention put forward by the learned counsel for the petitioner is not liable to be accepted. 9. Point No.2: In paragraph 7 of Ext.P12 representation dated 6.2.2016, addressed to the Chairman of the Advisory Board, the detenu stated the following: "7. ...... This Hon'ble advisory board may kindly forward this representation to the Government directing to furnish its comments on the points raised by me in this representation. This Hon'ble Board may direct the government to consider the representation without waiting for the opinion of this Hon'ble Board independently and expeditiously and inform me the fate of this representation." 10. Admittedly, the representation was not independently considered by the Government. The Advisory Board gave its opinion that there was sufficient cause for the detention of the detenu. On the basis of the report of the Advisory Board, the order of confirmation was issued on 14.3.2016. The report of the Advisory Board was dated 3.3.2016. The Government had enough time to dispose of the representation before considering the question of confirmation. But the Government did not consider the representation independently. 11. In paragraph 11 of the Writ Petition, it is averred as follows: "11. The petitioner sent a representation to the Advisory Board dated 6.02.2014. A true photocopy of the representation is produced herewith and marked as Exhibit P12. The representation was sent to the jail for forwarding to advisory board through professional courier. A copy of the receipt issued from the professional courier dated 5.2.2016 is produced herewith and marked as Exhibit P13. In Ext.P10 the detenu had requested the advisory board to send the representation to the government with a direction to send the comments of the govt. to the advisory board and get the representation disposed of by the government. The detenu did not get any letter intimation or order regarding as to what has happened to Ext.P10 representation." 12. The averments in paragraph 11 of the Writ Petition were answered in paragraph 16 of the counter affidavit filed by the third respondent, which reads as follows: "16. The averments in paragraph 11 pertaining to submission of representation Dated 06.02.2016 before the Advisory Board is true. The averments in paragraph 11 of the Writ Petition were answered in paragraph 16 of the counter affidavit filed by the third respondent, which reads as follows: "16. The averments in paragraph 11 pertaining to submission of representation Dated 06.02.2016 before the Advisory Board is true. The Advisory Board has immediately forwarded a copy of the said representation to the Dy. Commissioner of Police (L&O), Thiruvananthapuram City for remarks in which a detailed report was furnished on the basis of which the Advisory Board heard the detenu in person and opined that there is sufficient cause for detaining him. It was in the wake of opinion of the Advisory Board, the Home Department has issued confirmation to the detention of the detenu by fixing his period of detention as one year." 13. The decision in Smt. Gracy v. State of Kerala and another ( (1991) 2 SCC 1 = AIR 1991 SC 1090 = 1991 KHC 918) was heavily relied on by the learned counsel for the petitioner. In Gracy's case, the detenu's case was referred by the Central Government to the Central Advisory Board on 2.3.1990. The detenu made his representation on 24.3.1990 and addressed it to the Advisory Board. The Advisory Board considered the reference and also the detenu's representation. The Advisory Board gave the opinion that there was sufficient cause to justify the detention. The Central Government issued the order of confirmation on 24.4.1990 and it was directed that the detenu shall be detained for a period of two years. There was no independent consideration of the detenu's representation by the Central Government at any point of time. In this factual background, the Supreme Court considered the question whether the detention of the petitioner is vitiated and it was held thus: "It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Art.22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. In other words, one representation of the detenu addressed only to the Central Government and not also to the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirement of consideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Art. 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Art. 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implied the duty to consider and decide the representation when made, as soon as possible. Art.22 (5) speaks of the detenu's 'representation against the order', and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together Cls.(4) and (5) of Art.22, even though express mention in Art.22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions for representation to two different authority viz. the detaining authority and the Advisory Board, both having independent power to act on its own. It is not as if there are two separate and distinct provisions for representation to two different authority viz. the detaining authority and the Advisory Board, both having independent power to act on its own. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Art.22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art.22(5) in support of the contention of the learned Solicitor General. The contents of Art.22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Art.22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Art.22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention." 14. In the light of the decision in Smt. Gracy v. State of Kerala and Another ( (1991) 2 SCC 1 = AIR 1991 SC 1090 = 1991 KHC 918) non consideration of the representation would be fatal and the continued detention of the detenu would be illegal. 15. Accordingly, we hold that the continued detention of the detenu is illegal. The detenu shall be released from jail forthwith, unless his detention is required in connection with any other case. The Registry shall forward the gist of this judgment to the Superintendent of Jail where the detenu is detained. The Writ Petition is allowed as indicated above.