Kerala High Court
Sindhu vs State Of Kerala on 5 July, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
WP(CRL.) NO. 606 OF 2024
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR. A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
FRIDAY, THE 5TH DAY OF JULY 2024 / 14TH ASHADHA, 1946
WP(CRL.) NO. 606 OF 2024
PETITIONER/S:
SINDHU
AGED 47 YEARS
W/O RAJAN, ELAYAMPURAKKAL HOUSE, BHAJANAMADOM DESOM,
KOOLIMUTTAM VILLAGE, MATHILAKAM, THRISSUR, PIN - 680691
BY ADVS.
M.H.HANIS
P.M.JINIMOL
T.N.LEKSHMI SHANKAR
NANCY MOL P.
ANANDHU P.C.
NEETHU.G.NADH
CIYA E.J.
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM,, PIN - 695001
2 THE DISTRICT COLLECTOR & DISTRICT MAGISTRATE
CIVIL STATION,AYYANTHOLE,THRISSUR,THRISSUR DIST, PIN -
680003
3 THE CITY POLICE CHIEF
MANNUMKAD,RAMAVARMAPURAM,THRISSUR,THRISS DIST, PIN -
680020
4 THE CHAIRMAN,
ADVISORY BOARD, KAAPA, SREENIVAS, PADAM ROAD, VIVEKANANDA
NAGAR, ELAMAKKARA, ERNAKULAM DIST, PIN - 682026
5 THE SUPERINTENDENT OF JAIL
CENTRAL PRISON, KANNUR, PIN - 670004
WP(CRL.) NO. 606 OF 2024
2
SRI.ANAS (PP)
THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON
05.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(CRL.) NO. 606 OF 2024
3
[CR]
JUDGMENT
Dated this the 05th day of July, 2024 S.Manu, J.
By Ext.P1 order dated 04.05.2024 issued by the 2 nd respondent, son of the petitioner, Sri.Rahul Raj was directed to be detained under the provisions of Kerala Anti-Social Activities (Prevention)Act, 2007 (hereinafter referred to as KAAPA) for a period of one year. The detenu was earlier detained for a period of six months and was released on 27.10.2023. Thereafter, he was implicated in two more criminal cases. In the second round of proceedings, the detaining authority took note of Crime No.165/2024 of Kaipamangalam Police Station, in which the alleged occurrence was on 22.02.2024, for the purpose of passing the second order of detention. At the time of hearing, learned Counsel appearing for the petitioner raised two contentions before us. The first contention is that the last prejudicial activity happened on 22.02.2024, which led to the registration of Crime No.165/2024 of Kaipamangalam Police Station and the detenu was arrested on 22.06.2024 in connection with the same case. Ext.P1 order of detention was WP(CRL.) NO. 606 OF 2024 4 issued while he was undergoing judicial custody in connection with the said crime. The learned Counsel submitted that though the detenu was in judicial custody, and materials relied on by the detaining authority were available with the sponsoring authority, there is a delay of more than two months in passing the detention order from the date of last prejudicial activity. Therefore, he argued that the live link essential for sustaining the detention order was snapped in this case and hence the detention is invalid. Learned Government Pleader Shri K.A.Anas pointed out that the detenu was arrested in connection with the crime registered on 26.02.2024 and he continued in judicial custody. The sponsoring authority submitted proposal for detention when it was felt that there is imminent possibility of the detenu being released on bail and again indulging in prejudicial activities. After gathering the materials to be placed before the detaining authority, the proposal was submitted without any unreasonable delay and order of detention was thereafter issued by the detaining authority.
2. In view of the explanation offered by the learned Government Pleader for the time taken in the matter, we are satisfied that there is no culpable delay involved in issuing the WP(CRL.) NO. 606 OF 2024 5 detention order in this case. It is to be noted that the detenu was arrested on 26.2.2024 and even if he does not move any application for regular bail, chance of he being released on statutory bail was also there and it is only reasonable on the part of the sponsoring authority to move for obtaining an order of preventive detention, when the sponsoring authority had genuine apprehension of the detenu being released from judicial custody. So also, during the initial period of judicial custody, if the likelihood of bail being granted is remote, there is no reason for the authorities to apprehend that the detenu will involve in activities affecting public tranquillity as he is already in prison. Hence the authorities cannot be found to have faulted if they had not acted till there arose genuine apprehension of the detenu being set free from judicial custody and involving in activities adversely affecting public order. In such situations it cannot be said that the live link has been snapped only because there is a gap of time amid the last prejudicial activity and the issuance of the detention order. Hence, we reject the contention regarding delay, raised by the learned Counsel for the petitioner.
3. The second contention raised is regarding the stipulation of the period of detention as one year in Ext.P1 WP(CRL.) NO. 606 OF 2024 6 nd order issued by the 2 respondent, District Magistrate. Learned Counsel for the petitioner submitted that the 2 nd respondent District Magistrate is not competent to fix the period of detention. The absolute authority to fix the period of detention is vested with the Government. Hence, he contended that Ext.P1 order is liable to be set aside. He relied on the findings in the decision in Anitha Bruse Vs State of Kerala [ 2008 (2) KLT 857].
4. In response to the submission made by the learned Counsel for the petitioner, the learned Government Pleader submitted that the mentioning of the period of detention by the 2nd respondent cannot be considered as an error invalidating the detention order as such. Learned Government Pleader submitted a copy of the letter issued by the Home Department of the State Government on 01.03.2024, to all District Magistrates instructing them to propose the period of detention also while issuing the detention orders. He also submitted that the said instruction was later modified by another letter dated 12.06.2024 issued by the Home Department and by the subsequent communication, the District Magistrates were instructed that there is no need to mention the period of detention in the WP(CRL.) NO. 606 OF 2024 7 orders issued by them. He pointed out that Ext.P1 order in this case was issued on 04.05.2024, while the instruction issued by the Government on 01.03.2024 was in force. He therefore, submitted that there is nothing wrong on the part of the 2nd respondent in stipulating the period of detention also in Ext.P1. He also contended that the mentioning of the period of detention in Ext.P1 is of no consequence since the provisions of the Act permit continuation of detention beyond a period of 12 days from the date of issuance of the order of detention by the District Magistrate, only if the Government approves the detention. He submitted that the matter has to be referred to the Advisory Board in a time bound manner and continuation of the detention will depend upon the recommendation in the report of the Board. He also pointed out that the Government has to decide and specify the period of detention, while issuing the confirmation order after receiving the report from the Advisory Board. Therefore, he argued that even if the District Magistrate mentions any period in the initial order, the same has no consequence as the provisions of the Act ensure that no prejudice is caused to the detenu on account of the same. He also referred to Section 7(4) of the Act to contend that the direction WP(CRL.) NO. 606 OF 2024 8 regarding period of detention in Ext.P1 can be set aside to that extent without setting aside the order as such.
5. In view of the contentions raised by the learned Government Pleader, we find it necessary to analyse the matter in detail appreciating his earnest efforts to defend the detention. We will first refer to the relevant provisions of the statute. Section 3 of the KAAPA is the provision which provides power to make orders for detaining Known-Goondas and Known-Rowdies. The said provision is extracted herein for ready reference:
''(1)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 during such period as may be specified in the said order, the District Magistrate having jurisdiction may WP(CRL.) NO. 606 OF 2024 9 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. It is clear from Sub Section (1) that the authority to issue orders for detention is principally bestowed with the Government. However, subsection (2) empowers the Government to authorise the District Magistrates to exercises the powers under Ss.3(1). When detention order is issued by such authorised officer under Sub Section 3(2), the officer shall report the fact to the Government and State Police Chief forthwith. The order issued by the authorised officer shall remain in force only for a period of 12 days, excluding public holidays from the date of detention, if the same is not WP(CRL.) NO. 606 OF 2024 10 approved by the Government or by the Secretary, Home Department, within such time.
7. Section 9 of the Act is about reference to the Advisory Board. When a detention order is issued under the Act and the person is detained, within three weeks from the date of detention, the Government has to place before the Advisory Board, the grounds on which the detention order has been made, representation if any from the person affected as well as the report by the authorised officer, in case the order has been issued by an authorised officer. Thereafter, the Advisory Board has to consider the materials and submit its report to the Government within 9 weeks from the date of detention. Section 10 deals with the procedure of the Advisory Board and further action. Sub Section 10(4) reads thus:
''(4) 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, the Government shall revoke the detention order and cause the person to be released forthwith.'' ( Emphasis supplied ).
WP(CRL.) NO. 606 OF 2024 11
8. It is relevant to note that under Section 10(4), the Government may confirm the detention order and direct continuation of detention for such period as it thinks fit, If the Board reports that there is sufficient cause for detention. (In case the report is against continuation of detention, no discretion is vested with the Government and the only course open is to revoke the detention.) Hence analysis of the statutory scheme reveals that the decision regarding period of detention is to be taken by the Government after receipt of report from the Advisory Board. It is relevant to note that there is no mention about the period of detention in Section 3. The only provision enabling to fix the period of detention is Sub Section 10(4). It is also to be noted that the power conferred on the District Magistrates under Section 3(2) of the Act, is the power basically vested with the Government under Section 3(1). As already noted, there is no mention about the period of detention in Section 3 of the Act. It is therefore implicit that fixing of any period of detention at the stage of issuing initial order under Section 3 was not in contemplation of the legislature while enacting the KAAPA. Hence, the impression obtained on a conjoint WP(CRL.) NO. 606 OF 2024 12 reading of Sections 3, 9 and 10 of the Act is to the effect that determining the period of detention under KAAPA can be only at the stage of exercising the power vested with the Government under Section 10(4) and not at any earlier stages. Certainly, scheme of the Act can be framed only in the said fashion as it ought to be flawlessly in harmony with the provisions of Article 22 of the Constitution.
9. The mandate of Clause 4 Art. 22 is that no law providing for preventive detention shall authorise the detention of a person for a period longer than 3 months unless, an Advisory Board reports before the expiration of the period of three months that in its opinion, there is sufficient cause for such detention. Therefore, there cannot be preventive detention under any law for a period exceeding three months, without a report of an Advisory Board to the effect that there is sufficient cause for such detention. Hence no authority, including the Government can fix the period of detention as more than three months under any law while issuing the initial order. We hence find that Section 10(4) of the KAAPA is perfectly in tune with the mandate of clause 4 of Article 22 of the Constitution of India.
WP(CRL.) NO. 606 OF 2024 13
10. Hence, the scheme of the KAAPA and the mandate of clause 4 Article 22 of the Constitution do not permit issuing an order for keeping a person under preventive detention for a period of one year at the initial stage.
11. Apart from the analysis of the provisions we shall refer to some precedents also. Honourable Supreme Court has ruled against fixing of time limits in the initial orders issued under various preventive detention laws. The Constitution Bench of the Hon'ble Supreme Court in Makhan Singh Tarsikka Vs State of Punjab [1951 SCC 1140] held as follows:
''6.Whatever might be the position under the Act before its amendment in February 1951, it is clear that the Act as amended requires that every case of detention should be placed before an Advisory Board constituted under the Act (Section 9) and provides that if the Board reports that there is sufficient cause for the detention "the appropriate Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit" (Section 11). It is, therefore, plain that it is only after the Advisory Board, to which the case has been referred, reports that the detention is justified, the Government should determine what the period of detention should be and not before. The fixing of the period of detention in the initial order itself in the present case was, therefore, contrary to the scheme of the Act a nd cannot be supported''
12. The said judgment was rendered by the Hon'ble Supreme Court in the case of detention under the Preventive WP(CRL.) NO. 606 OF 2024 14 Detention Act,1950. It was followed by another Constitution Bench in Dattatrya Moreshwar Pangarkar Vs State Of Bombay And Others [(1951) 1 SCC 372 ], yet another case arising from the same enactment. Thereafter, propriety of fixing the period of detention in the initial order came up for consideration before the Hon'ble Supreme Court in various cases under different Preventive Detention laws.
13. In Cherukuri Mani Vs Chief Secretary, Government of Andhra Pradesh and Others [2014 (13) SCC 722], the case arose from preventive detention under The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986. In the said case the Hon'ble Supreme Court observed as follows:
"14. Where the law prescribes a thing to be done in a particular manner following a particular procedure, it shall be done in the same manner following the provisions of law, without deviating from the prescribed procedure. When the provisions of Section 3 of the Act clearly mandated the authorities to pass an order of detention at one time for a period not exceeding three months only, the government order in the present case, directing detention of the husband of the appellant for a period of twelve months at a stretch is clear violation of the WP(CRL.) NO. 606 OF 2024 15 prescribed manner and contrary to the provisions of law. The Government cannot direct or extend the period of detention up to the maximum period of twelve months in one stroke, ignoring the cautious legislative intention that even the order of extension of detention must not exceed three months at any one time. One should not ignore the underlying principles while passing orders of detention or extending the detention period from time to time."
15. Normally, a person who is detained under the provisions of the Act is without facing trial which in other words amounts to curtailment of his liberties and denial of civil rights. In such cases, whether continuous detention of such person is necessary or not, is to be assessed and reviewed from time to time. Taking into consideration these factors, the legislature has specifically provided the mechanism "Advisory Board" to review the detention of a person. Passing a detention order for a period of twelve months at a stretch, without proper review, is deterrent to the rights of the detenu. Hence, the impugned government order directing detention for the maximum period of twelve months straightaway cannot be sustained in law."
14. In Kavita vs State of Maharashtra And Others [1981 (3) SCC 558 ] a three judge bench of the Hon'ble WP(CRL.) NO. 606 OF 2024 16 Supreme Court considered a case of preventive detention under the COFEPOSA Act. In Paragraph 4 of the judgment the Hon'ble Supreme Court held as follows:
''4. The first important factor to be noticed here is that the period for which a person is to be detained under the COFEPOSA is not to be determined and specified at the time of making the original order of detention under Section 3(1). It has to be determined and specified at the time of confirming the order of detention under Section 8(f), after receiving the report of the Advisory Board. The second factor of importance which calls for attention is that while an order of detention may be made by the State Government, the Central Government or an officer of either Government specially empowered in that behalf, an order of detention may only be confirmed by the appropriate Government ***** On receipt of the report the Government has to revoke the detention, if the Board has reported that there is no sufficient cause for the detention or, to confirm the order of detention and specify the period of detention if the Board has reported that there is sufficient cause for the detention [Section 8(f) of COFEPOSA]. In the meanwhile, at any time, the Central Government in any case, and the State Government if the order of detention was made by the State Government or by an officer of the State Government, are entitled to revoke the order of detention. Thus, there is no constitutional or statutory obligation on anyone, until after the report of the Advisory Board it received to decide finally or tentatively upon the period of detention. The initial compulsion on the detaining authority before making an order of detention is to arrive at the satisfaction that it is necessary to detain the person concerned with a view to preventing him from acting in a certain manner or with a view to preventing him from WP(CRL.) NO. 606 OF 2024 17 committing certain acts. The obligation to specify the period of detention is upon the appropriate Government and that has to be done at the final stage, after consideration of the report of the Advisory Board. There is no intermediate stage at which any tentative conclusion is to be arrived at by the Government regarding the period of detention though, at any and every stage, the Government has the full liberty to revoke the order of detention.
*******
15. In the judgment in Smt.Masuma Vs State of Maharashtra and another [1981 (3) SCC 566] also the Hon'ble Supreme Court considered a case of preventive detention under COFEPOSA. The Hon'ble Court held as follows in paragraph 4:
******* We are clearly of the view that it is not at all necessary for the detaining authority to apply its mind and consider at the time of passing the order of detention or before making a reference to the Advisory Board, as to what shall be the period of detention and whether the detention is to be continued beyond a period of three months or not. The only inhibition on the detaining authority is that it cannot lawfully continue the detention for a period longer than three months unless the Advisory Board has, before the expiration of the period of three months, reported that there is in its opinion sufficient cause for such detention. We must therefore hold that the State Government did not commit any breach of its constitutional or legal obligation in making a reference to the Advisory Board without first determining the WP(CRL.) NO. 606 OF 2024 18 period for which the detenu was to be detained.''
16. In the judgment in Lahu Shrirang Gatkal Vs State of Maharashtra through Secretary and Others [2017 (13) SCC 519] the Hon'ble Supreme Court considered a case arising from the Maharashtra Prevention of Dangerous Activities of Slumlords, Bootleggers Drug-offenders, Dangerous Persons and Video Pirates Act, 1981. In the said case, the Hon'ble Apex Court referred to the law laid down in Cherkuri's arising from The Andhra Pradesh Prevention of Dangerous Activities of Bootleggers, Dacoits, Drug-Offenders, Goondas, Immoral Traffic Offenders and Land-Grabbers Act, 1986 and followed the same principles.
17. Recently a three judge bench of the Hon'ble Apex Court elaborately considered the same issue in Pesala Nookaraju Vs Government of Andhra Pradesh and Others [ 2023 SCC Online SC 1003] . Relevant paragraph of the judgement is extracted hereunder-
''4.Hence, Article 22(4)(a) in substance deals with the order of detention and has nothing to do with the delegation of the power of detention by the State Government to an Officer as stipulated under Section 3(2) of the Act. In fact, under Section 9 of the Act, the State Government has to refer the matter to the Advisory Board within three weeks from the date of detention, WP(CRL.) NO. 606 OF 2024 19 irrespective of whether the detention order is passed under Section 3(1) or Section 3(2) of the Act and the Advisory Board has to give its opinion within seven weeks from the date of detention. That would totally make it ten weeks. As stipulated in Article 22(4)(a) of the Constitution, if in a given case, once the Advisory Board gives its opinion within the stipulated period of three months, then in our view, Article 22(4)(a) would no longer be applicable. Thus, Article 22(4)(a) applies at the initial stage of passing of the order of detention by the State Government or by an officer who has been delegated by the State Government and whose order has been approved by the State Government within a period of twelve days from the date of detention and not at the stage subsequent to the report of the Advisory Board. Depending upon the opinion of the Advisory Board, under Section 12 of the Act, the State Government can revoke the order of detention and release the detenu forthwith or may confirm the detention order and continue the detention of the person concerned for any period not exceeding the maximum period of twelve months, which is stipulated in Section 13 of the Act. Therefore, when the State Government passes a confirmatory order under Section 12 of the Act after receipt of the report from the Advisory Board then, such a confirmatory order need not be restricted to a period of three months only. It can be beyond a period of three months from the date of initial order of detention, but up to a maximum period of twelve months from the date of detention.''
18. In view of the various authorities referred to above, it is clear that the Hon'ble Supreme Court has consistently held with respect to various preventive detention laws that it is inappropriate and illegal to determine the period of detention in the initial order itself. In no case, the period can exceed three months stipulated under Clause 4 of Article 22. The WP(CRL.) NO. 606 OF 2024 20 Division Bench of this court in Anitha Bruse vs. State of Kerala(supra) followed the same principle in KAAPA.
19. The learned Government Pleader had submitted that no prejudice is caused to the detenu by mentioning of the period of detention by the District Magistrate as the said order would survive only if it is approved by the Government within 12 days and later approved by the Advisory Board. However, we note that the Constitution Bench of the Hon'ble Supreme Court in Makhan Singh's case(supra) observed that a direction to keep the detenu under detention for a specific period in the initial order would tend to prejudice a fair consideration of the case of the detenu, when it is placed before the Advisory Board. Hence, we must hold that the stipulation of the period in the order issued by the District Magistrate, though is subject to the provisions of the Act as rightly pointed out by the learned Government Pleader, results in prejudice to the detenu.
20. learned Government Pleader placed before us the instructions issued by the Home Department on 01.03.2024 authorising the District Magistrate to propose the period of detention also. The learned Government Pleader, as noted the outset submitted that the order under challenge in the present WP(CRL.) NO. 606 OF 2024 21 case was issued by the District Magistrate while the said instructions was in force. The said aspect may be factually correct and the 2nd respondent District Magistrate may have followed the instructions issued by the Government on 01.03.2024 while passing Ext.P1 order.
21. District Magistrates, while issuing orders under the Act, enjoy only the power vested with the Government under Section 3(1) of the Act and nothing beyond the amplitude of the same. The statute permits delegation of the power vested with the Government under Section 3(2) to the District Magistrates. However, there is no provision in the Act, permitting the Government to delegate any other power vested with it. While issuing the instructions dated 01.03.2024, the Government had virtually made an attempt to delegate a part of its exclusive authority under Section 10(4) of the Act also to the District Magistrates. In the matter of preventive detention, the authorities are bound to follow the law strictly and any deviations or dilutions will render the detention invalid. Strict interpretation is the rule, in the case of preventive detention laws. Courts are under obligation to interpret the law strictly, though not unrealistically, as liberty of the individual is at stakes. Personal liberty cannot be deprived of except in WP(CRL.) NO. 606 OF 2024 22 accordance with the procedure established by law. Not only the substance but procedure is also important and requires scrupulous adherence. Hence the instructions issued vide letter dated 01.03.2024 of the Home Department to the extent it permitted the District Magistrates to propose the period of detention was totally illegal. It appears that a Government later realised the same and issued clarification on 12.06.2024 that there is no need to order the period of detention in the detention order issued by the detaining authorities.
22. Regarding the contention of the learned Government Pleader that Ext.P1 order may be treated as bad only to the extent it specifies the period of detention, we find that the error goes to the root of the matter by offending the provisions of Article 22 and hence the same cannot be severed and the detention order cannot be saved. Section 7(4) also cannot be of any help as we are of the view that the said provision apply only in circumstances wherein one or more the facts or circumstances cited among the laws are vague, non-existent, irrelevant or invalid for any reason. It cannot be stretched to save any other flaws or shortfalls.
23. We also note that a Division Bench of this Court in Vishnuja Vs. State of Kerala [2018 (1) KLT 978] WP(CRL.) NO. 606 OF 2024 23 considered a case in which the Government fixed the period of detention as one year in violation of Section 12 of the Act. It was a case of first detention and therefore the maximum period permitted under Section 12 of the Act was only six months. Though a specific ground was raised regarding the impropriety of fixing period of detention beyond six months the Division Bench was of the view that the order is illegal only to the extent it fixed the period of detention in excess of the period that could have been imposed under Section 12 of the Act. The order as such was not held illegal. However, we note that in the said case, the period of detention was mentioned erroneously by the Government, that too in an order confirming the detention after receiving the report of the Advisory Board. In other words, it was a case wherein the authority having the power to fix the period of detention erroneously fixed it beyond the limit provided under Section 12 while issuing the order of confirmation. In such a situation, the principles applicable regarding fixing of period of detention are totally different. Once the report of the Advisory Board is obtained, the mandate of Article 22(4) of the Constitution will cease to operate. This aspect has been clarified by the Hon'ble Supreme Court in the judgment in Pesala Nookaraju WP(CRL.) NO. 606 OF 2024 24 (supra).
24. We, for the purpose of clarity, recapitulate that under the scheme of the KAAPA the power conferred on the District Magistrates is only to exercise the powers delegated to them as per Section 3(2) and also to comply with the requirements under Section 3(3). Their role ends with compliance of the provisions of Section 3 (3). It is for the Government to satisfy the mandate of clause 4 of Art 22 by rigorously complying with the requirements under Sections 8,9 & 10 of KAAPA. Only the Government is vested with the power to fix the period of detention under Section 10 (4). The power exclusively vested with the Government under Section 10(4) of the KAAPA to fix the period of detention cannot be delegated to the District Magistrates. Needless to say, the power to fix the period of detention can be exercised only after receiving the report of the Advisory Board. Stipulating the period of detention in the initial orders issued under S.3 would militate against the provisions of Art. 22 as well as the scheme of the Act and render the order illegal.
WP(CRL.) NO. 606 OF 2024 25 Consequently, we allow this writ petition. Ext P 1 order of detention is set aside. The detenu shall be released forthwith if his custody is not required in any other proceedings.
sd/ A.MUHAMED MUSTAQUE ACTING CHIEF JUSTICE sd/ S.MANU JUDGE jm/ WP(CRL.) NO. 606 OF 2024 26 APPENDIX OF WP(CRL.) 606/2024 PETITIONER EXHIBITS Exhibit -P1 A TRUE COPY OF ORDER NO.DCTSR/4067/2024-C4 DATED 04.05.2024 OF THE 2ND RESPONDENT