KAAPA; Krishnan Vs. District Collector And District Magistrate Kasaragod [Kerala High Court, 15-07-2016]

Anti-Social Activities (Prevention) Act, 2007 (Kerala) KAAPA – Sections 3 (2) & 10 (4) – Period of Detention – The District Magistrate has no authority to fix the period of detention at the time of passing the order of detention or thereafter.

Anti-Social Activities (Prevention) Act, 2007 (Kerala) – Section 15 (1) – Maximum period of detention – Fixation of the period of detention arises only after the confirmation of the order of detention. No authority, including the Government, would fix the period of detention before confirming the order of detention. Confirmation of the order of detention would take place only after the report containing the opinion of the Advisory Board is received.

Anti-Social Activities (Prevention) Act, 2007 (Kerala) – Section 15 (1) – Fixation of the period of detention – Under Section 15(1) of the KAAPA, no order of detention can be passed. Section 15(1) of the KAAPA deals with the power to make orders restricting the movements of persons in the category of known goonda or known rowdy. The procedure under Section 15 is quite different from the procedure to be followed after an order under Section 3(1) of the KAAPA is passed. There is no procedure for confirmation of an order under Section 15(1), as in the case of an order of detention under Section 3(1) of the KAAPA.

Anti-Social Activities (Prevention) Act, 2007 (Kerala) – The Government has authority to revoke or modify the order of detention at any time.

# KAAPA


IN THE HIGH COURT OF KERALA AT ERNAKULAM

K.T.SANKARAN & A.HARIPRASAD, JJ.

W.P.(Crl.) No.191 of 2016 (S)

Dated this the 15 th day of July, 2016

PETITIONER

KRISHNAN

BY ADVS.SRI.K.S.ARUN KUMAR SMT.M.N.MAYA SMT.RESMI THOMAS SRI.M.S.DILEEP

RESPONDENTS

1. THE DISTRICT COLLECTOR AND DISTRICT MAGISTRATE KASARAGOD, PIN- 671001

2. THE DISTRICT POLICE SUPERINTENDENT KASARAGOD, PIN 671001

3. STATE OF KERALA REP. BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT (HOME & VIGILANCE), SECRETARIAT THIRUVANANTHAPURAM, PIN-695001

BY ADDL.DIRECTOR GENERAL OF PROSECUTION SRI.TOM JOSE PADINJAREKKARA

JUDGMENT

K.T.Sankaran, J.

Ratheesh P.V. @ Manthi Ratheesh, son of the writ petitioner was detained under

# Section 3(1) of the Kerala Anti-Social Activities (Prevention) Act, 2007

(hereinafter referred to as the “KAAPA”), as per Ext.P1 order of detention dated 05.12.2015 passed by the District Magistrate, Kasaragod. The petitioner was classified as a known rowdy in the order of detention. The order of detention was executed on 08.12.2015. Ext.P2 order of confirmation was passed by the Government on 02.02.2016. As per Ext.P2, the period of detention was fixed as one year from the date of detention of the detenu.

2. The order of detention as well as the continued detention of the detenu are under challenge in this writ petition.

3. The only point raised by the learned counsel for the petitioner challenging the continued detention of the detenu is that as per the jail admission authorisation dated 0.5.12.2015 signed by the District Magistrate, Kasaragod and addressed to the Superintendent of Central Jail, Kannur, the latter was authorised to keep under detention the detenu for a period of six months from the date of arrest and, therefore, the detenu is liable to be released forthwith, he having undergone detention for more than six months.

4. Learned Additional Director General of Prosecution (ADGP) submitted that the jail admission authorisation is a communication from the District Magistrate, Kasaragode to the Superintendent of Central Jail, Kannur and it is not a document to be served on the detenu paripassu the order of detention. However, that document was also served on the detenu. Learned ADGP submitted that the District Magistrate has no jurisdiction to fix the period of detention either in the order of detention or while issuing the jail admission authorisation or thereafter. The jurisdiction to fix the period of detention is vested with the Government while confirming the order of detention under Section 10(4) of the KAAPA.

5. The order of detention under Section 3(1) of the KAAPA can be passed either by the Government or by the Officer authorised under Sub-section (2) of Section 3 of the KAAPA. The District Magistrate is an Officer authorised under Sub-section (2) of Section 3 of the KAAPA. If an order of detention is passed by an Officer so authorised, the mandate under Section 3(3) of the KAAPA is that no order of detention shall remain in force for more than 12 days excluding public holidays from the date of detention, 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. At the time when an order of detention is passed under Section 3(1) of the KAAPA, there is no requirement that the period of detention shall be fixed. In fact, the law does not authorise the detaining authority to fix the period of detention at the time when an order is passed under Section 3(1) of the KAAPA. The scheme of the KAAPA is that after the order of detention is executed and the person concerned is arrested in pursuance of the detention order, the Government shall, within three weeks from the date of detention of the person concerned, place before the Advisory Board the grounds on which the order has been passed and the representation, if any, made by the person affected and in the case where the order has been passed by an authorised officer, the report by such officer under Sub-section (3) of Section 3 of the KAAPA. Section 10 of the KAAPA provides for the procedure of the Advisory Board and further action to be taken. The Advisory Board is bound to furnish its opinion within nine weeks from the date of detention of the person concerned. 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. The power to confirm the order of detention is conferred only on the Government under Section 10(4) of the KAAPA. Even though an Officer authorised under Section 3(2) of the KAAPA can pass an order of detention, that Officer has no authority to confirm the order of detention after the opinion of the Advisory Board is received. Therefore, it is clear that as per the scheme of the KAAPA, there is no question of fixing the period of detention at the time when the order of detention is issued. The jail admission authorisation issued by the District Magistrate is only an intimation to the Superintendent of Central Jail that the person concerned shall be kept under detention in the Central Jail. The mention of the period of six months in the jail admission authorisation was made without jurisdiction. The District Magistrate has no such power. If the District Magistrate fixes the period of detention in the order of detention or mentions the same in the jail admission authorisation, it does not bind the Government. The power of the Government to confirm the order of detention and to fix the period of detention under Section 10(4) of the KAAPA is not taken away by the fixing of the period by the District Magistrate illegally. That a copy of the jail admission authorisation is supplied to the detenu at the time when he was arrested, that the period fixed therein is only six months and that period is over now is not a ground to hold that the continued detention of the detenu is illegal. Therefore, we are not inclined to accept the contention put forward by the learned counsel for the petitioner.

6. The District Magistrate has no authority to fix the period of detention at the time of passing the order of detention or thereafter. Then, why should he mention the period when he communicates the matter to the Superintendent of Central Jail? He should not have done so.

7. Section 12 of the KAAPA provides for the maximum period for which a person may be detained in pursuance of an order of detention under the Act, which has been confirmed under Section 10 of the KAAPA. Section 12 of the KAAPA, before its amendment by the Amendment Act, 2014 was the following:

# Maximum period of detention

The maximum period for which any person may be detained in pursuance of any detention order made under this Act, which has been confirmed under section 10, shall not exceed six months from the date of detention.”

Section 12 of the KAAPA was amended by the Amendment Act, 2014 and the following Section was substituted.

“Maximum period of detention.-In pursuance of the first detention order made against any person under this Act and confirmed under section 10, he may be detained for a period which may extend up to six months from the date of the detention and in pursuance of such subsequent detention order made against such person, he may be detained for a period which may extend up to a maximum of one year.”

Fixation of the period of detention arises only after the confirmation of the order of detention. No authority, including the Government, would fix the period of detention before confirming the order of detention. Confirmation of the order of detention would take place only after the report containing the opinion of the Advisory Board is received. The only provision in the KAAPA empowering the District Magistrate to fix a period is Section 15(1). Under Section 15(1) of the KAAPA, no order of detention can be passed. Section 15(1) of the KAAPA deals with the power to make orders restricting the movements of persons in the category of known goonda or known rowdy. The procedure under Section 15 is quite different from the procedure to be followed after an order under Section 3(1) of the KAAPA is passed. There is no procedure for confirmation of an order under Section 15(1), as in the case of an order of detention under Section 3(1) of the KAAPA.

8. The jail admission authorisation is not a document which was relied on for passing the order of detention and, therefore, it was not necessary to serve a copy of the same on the detenu. Nevertheless a copy was served on the detenu and he was made to believe that the period of detention is six months. It is true that the detenu may have been misled by the copy of jail admission authorisation served on him. The Government has authority to revoke or modify the order of detention at any time under Sub-section (1) of Section 13 of the KAAPA. We are of the view that this is a fit case where the Government may exercise the power under Section 13 (1) of the KAAPA since the detaining authority, by his illegal act, has misled the detenu.

9. Registry shall forward a copy of the judgment to the Additional Chief Secretary to the Government (Home and Vigilance), Secretariate, Thiruvananthapuram for consideration of the matter under Section 13(1) of the Kerala Anti-social Activities (Prevention) Act, 2007 and also for instructing the District Magistrates to avoid unintentional, but serious, mistakes in the documents like Jail Admission Authorisation. The Writ Petition (Criminal) is disposed of as above.

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