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2019 DIGILAW 1074 (KER)

Ramseena Anas, W/o. Anas v. State Of Kerala

2019-12-17

C.T.RAVIKUMAR, N.NAGARESH

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JUDGMENT : Ravikumar, J. This writ of habeas corpus in re one Anseer @ Anas, the detenu, is filed by his wife seeking mainly the following relief:- “(i) To issue a writ in the nature of HABEAS CORPUS or any other appropriate writ, order or direction compelling and commanding the respondents to produce the detenu before this Honorable Court and quash Exhibit P1 Detention Order which was approved and confirmed by the Government and to set the detenu at liberty.” 2. Upon considering the rival contentions with reference to the factual matrix and perusing the materials on record we are of the considered view that the short point that calls for consideration is regarding the effect and impact of rejection of representation filed by the detenu during the pendency of the proceedings pursuant to the reference of detenu's case, before the Advisory Board. 3. Heard the learned counsel appearing for the petitioner and also the learned Public Prosecutor. 4. We do not think that for the purpose of disposal of this writ petition an elaborate discussion of the factual matrix situation obtained in this case is necessary. Ergo, we will refer to the basic facts only. The aforesaid Anseer @ Anas was detained under the Kerala Anti-Social Activities (Prevention) Act, 2007 (for brevity hereinafter referred to as 'KAA(P)A'). In respect of the detenu Ext.P1 order of detention was passed under Section 3(i) of KAA(P)A, on 19.8.2019. Ext.P2 grounds for detention was served on him. Ext.P1 order was executed on 26.8.2019. Nine cases in which the detenu had involved were considered for the objective satisfaction to classify the detenu as a 'Known Rowdy' under Section 2(p) of KAA(P)A and ultimately, the 2nd respondent reached the subjective satisfaction that the 'detenu' be detained immediately for public safety, security, peace and tranquility of the society. Subsequently, the detenu submitted Ext.P18 representation dated 10.9.2019 to the Government. The learned Public Prosecutor submitted that though Ext.P18 is dated 10.9.2019 it was received by the Government only on 16.9.2019. The undisputed fact is that by the time it was received by the Government the case of the detenu was already referred before the Advisory Board on 7.9.2019. Hence, the representation received while the case of the detenu was pending before the Advisory Board, was forwarded to the Advisory Board. The undisputed fact is that by the time it was received by the Government the case of the detenu was already referred before the Advisory Board on 7.9.2019. Hence, the representation received while the case of the detenu was pending before the Advisory Board, was forwarded to the Advisory Board. However, the Advisory Board before forwarding its report after considering the case of the detenu referred to it, returned the representation to the Government. Without waiting for the report of the Advisory Board pursuant to the reference of the case of the detenu the Government considered Ext.P18 representation and rejected it as per Ext.P19 dated 11.10.2019. Later, on receipt of the report of the Advisory Board the Government confirmed the order of detention on 25.10.2019. With the said indisputable facts we will consider the rival contentions. 5. The learned counsel appearing for the petitioner contended that in the light of the dictum laid down by the Hon'ble Apex Court in Frances Coralie Mullin v. W.C.Khambra and Others ( AIR 1980 SC 849 ), which was referred to with agreement by the Constitutional Bench in K.M.Abdulla Kunhi and B.L.Abdul Khader v. Union of India and others [ (1991) 1 SCC 476 ] the Government could not have taken up Ext.P18 and passed orders thereon before the receipt of the report of the Advisory Board. In short, it is contended that going by the dictum laid down in Frances Coralie Mullin's case (supra) the Government should have waited till the receipt of the report on the reference of the case of the detenu before the Advisory Board and should not have disposed of the representation during the pendency of the proceedings before the Advisory Board. Since the representation was taken up and rejected before the receipt of the report from the Advisory Board during the pendency of the case of the detenu before the Advisory Board the order of detention itself is vitiated. The learned Public Prosecutor contended that the fact that Ext.P18 representation was rejected as per Ext.P19 when the case of the detenu was pending consideration before the Advisory Board would not and could not vitiate the order of detention which was passed after objective and subjective satisfaction. Paradoxically, the learned Public Prosecutor attempted to canvass the position relying on the decision in K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra). Paradoxically, the learned Public Prosecutor attempted to canvass the position relying on the decision in K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra). In that case, the Hon'ble Apex Court held that there are two constitutional safeguards with respect to detention of persons under preventive detention laws. The first among them enshrined under Clause (4) of Article 22 of the Constitution of India which mandates that if a detenu is liable to be detained for a longer period than three months, his case shall be referred to the Advisory Board which must report before the expiration of the said period of three months as to whether in its opinion there is sufficient cause for such detention. Section 9 of the KAA(P)A provides for reference of the detenu's case to the Advisory Board, within three weeks from the date of detention of that person and Section 10 provides that the Board must report within nine weeks from the date of detention of the person concerned as to whether or not there is sufficient cause for his detention. The second safeguard embodied in clause (5) of Article 22 requires that when any person is detained in pursuance of an order made under any law providing for preventive detention the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The Apex Court went on to hold, in paragraph 7, thus:- “The detenu has two rights under clause (5) of Article 22 of the Constitution: (i) to be informed, as soon as may be, of the grounds on which the order of detention is based, that is, the grounds which led to the subjective satisfaction of the detaining authority, and (ii) to be afforded the earliest opportunity of making a representation against the order of detention.” Section 7 of KAA(P)A provides that the grounds of detention shall be furnished to the detenu and he shall also be informed in writing under acknowledgment, of his right to represent to the Government and before the Advisory Board against his detention. 6. Paragraph 11 of the decision in K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra) is also worthy to refer and it runs as follows:- “11. 6. Paragraph 11 of the decision in K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra) is also worthy to refer and it runs as follows:- “11. It is now beyond the pale of controversy that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient case for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government, is, safeguarded by cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under cl. (4) of Art. 22 read with section 8(c) of the Act. The right to have the representation considered by the Government, is, safeguarded by cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under cl. (4) of Art. 22 read with section 8(c) of the Act. (See: Sk.Abdul Karim v. State of West Bengal [1969] 1 SCC 433; Pankaj Kumar Chakrabarty v. State of west Bengal, [1970] 1 SCR 543; Shayamal Chakraborty v. The Commissioner of Police Calcutta [1969] 2 SCC 426; B. Sundar Rao v. State of Orissa, [1972] 3 SCC 11; John Matrin v. State of West Bengal, [1975] 3 SCR 211; S.K. Sekawat v. State of West Bengal, [1975] 2 SCR 161 and Haradhan Saha v. State of West Bengal, [1975] 1 SCR 778.” The afore-quoted text from the decision in K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra) would reveal that the constitutional right to make representation under clause (5) of Article 22 by necessary implication guarantees the constitutional right to proper consideration of the representation. It would also reveal that the nature of consideration of a representation by the Government and by the Advisory Board is found to be different and distinct as Government considers the representation for ascertaining, essentially, whether the detention order is in conformity with the power under the law and whereas the Advisory Board considers the representation and the case of the detenu for examining whether there is sufficient cause for detention. 7. Now, we will consider the impact of rejection of representation by the Government during the pendency of the case of the detenu concerned. That question was considered by the Apex Court, after referring to its earlier decisions in Frances Coralie Mullin's case, K.M.Abdulla Kunhi and B.L.Abdul Khader's case (supra) and also in Jayanarayan Sukul v. State of W.B. (1970) 1 SCC 219 ), in the decision in Golam Biswas v. Union of India and Another reported in (2015) 16 SCC 177 . After referring to the decision in Jayanarayan Sukul's case (supra) wherein the principles on the process of consideration of a representation of the detenu in preventive detention cases were dealt with, it was held in paragraph 13 of Golam Biswas's case thus:- “13. After referring to the decision in Jayanarayan Sukul's case (supra) wherein the principles on the process of consideration of a representation of the detenu in preventive detention cases were dealt with, it was held in paragraph 13 of Golam Biswas's case thus:- “13. The above view resonated in affirmation as well in K.M.Abdulla Kunhi, K.M.Abdulla Kunhi v. Union of India, ( 1991 (1) SCC 476 : 1991 SCC (Cri) 613 wherein this Court, in para 16, reiterated the above. For ready reference, we consider it appropriate to extract the same: (SCC pp. 486-87, para 16) “16. We agree with the observations in Frances Corelie Mullin case, Frances Coralie Mullin v. W.C.Khambra, 1980 (2) SCC 275 : 1980 SCC (Cri) 419. The time imperative for consideration of representation can never be absolute or obsessive. It depends upon the necessities and the time at which the representation is made. The representation may be received before the case is referred to the Advisory Board, but there may not be time to dispose of the representation before referring the case to the Advisory Board. In that situation the representation must also be forwarded to the Advisory Board along with the case of the detenu. The representation may be received after the case of the detenu is referred to the Board. Even in this situation the representation should be forwarded to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of the High Court. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of the High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the representation is received by the Government after the Advisory Board has made its report, there could then of course be no question of sending the representation to the Advisory Board. It will have to be dealt with and disposed of by the Government as early as possible.” After further probe in the matter it was held in paragraph 15 of the decision in Golam Biswas's case thus:- “15. As admittedly, the detenu's representation dated 8.7.2014, pending with the Central Government, the appropriate Government in the case, was not forwarded to the Advisory Board and was instead rejected during the pendency of the proceedings before the Advisory Board, we are constrained to hold that the detention of the detenu is constitutionally invalid. The rejection of the representation by the Central Government later on 21-7-2014 during the pendency of the proceedings before the Advisory Board is of no consequence to sustain the detention. Consequently, the order of confirmation as well is rendered non est by this vitiation. In view of the determination made on the above aspect of the debate, we do not consider it necessary to dilate on the other pleas raised on behalf of the detenu. In the result, the appeal succeeds. The impugned judgment and order is set aside. The orders of detention as well as the order of confirmation are hereby annulled. The detenu is directed to be set at liberty, if not wanted in any other case.” (underline supplied) 8. We have already taken note of the factual position obtained in this case. Obviously, Ext.P18 representation of the detenu submitted to the Government was rejected as per Ext.P19 order during the pendency of the case of the detenu Anseer @ Anas, on reference under Section 9 of KAA(P)A, before the Advisory Board. We have already taken note of the factual position obtained in this case. Obviously, Ext.P18 representation of the detenu submitted to the Government was rejected as per Ext.P19 order during the pendency of the case of the detenu Anseer @ Anas, on reference under Section 9 of KAA(P)A, before the Advisory Board. The fact that Ext.P18 representation was initially forwarded by the Government to the Advisory Board and it was returned to the Government would not and could not make the decision in Golam Biswas's case (supra) inapplicable in the case on hand when indisputably, Ext.P18 representation was rejected as per Ext.P19 order during the pendency of case of the detenu concerned before the Advisory Board. In such circumstances, when we apply the dictum in the decision in Golam Biswas's case (supra) to the facts of this case, we are inclined to hold that detention of the detenu Anseer @ Anas is constitutionally invalid. This vitiation would render the order of confirmation non est. Ext.P1 order of detention is liable to be annulled. In the result, this writ petition is allowed. Ext.P1 order of detention is set aside. In case the detention of the detenu, Anseer @ Anas, is not warranted in connection with any other case, he shall be set at liberty forthwith.