ABOOBACKAR Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is filed by the father of one Mujeeb @ Vetta Mujeeb, S/o.Aboobacker @ Rajan, Kannakara Thekkathil, Peringala Village, the detenu, seeking issuance of writ in the nature of Habeas Corpus commanding the respondents to produce the detenu before this Court, to quash Ext.P1 order of detention which was approved and confirmed by the government and to set the detenu at liberty.

(2.) The learned counsel appearing for the petitioner submits that the indisputable facts obtained would make the order of detention liable to be held as constitutionally invalid in the light of the decision of the Apex Court in Golam Biswas v. Union of India and another,2015 KHC 5588.

(3.) To appreciate the said contention of the learned counsel appearing for the petitioner, a succinct narration of the facts is inevitable. Earlier, an order of detention was passed against the detenu reckoning registration of five crimes against him in Kayamkulam Police Station, viz. Crime Nos.1005/2012, 2174/2016, 2175/2016, 2185/2016 and 2342/2016. The present Ext.P1 order of detention was passed under Section 3(1) read with Section 13(2)(i) and (ii) of the Kerala Anti-Social Activities (Prevention) Act, 2007, taking into account the registration of Crime No.2787/2018 at Kayamkulam Police Station subsequently, to be precise on 31.10.2018, under Sections 143, 147, 148, 149, 323, 324 and 326 IPC and Sections 27(1) and 5(a) of the Arms Act. Ext.P1 order was executed on 27.05.2019. After its execution, the detenu filed Ext.P3 representation, which admittedly was received by the 1 st respondent on 19.06.2019. The said representation was rejected by the 1st respondent on 09.07.2019. Later, Ext.P1 order was confirmed as per Ext.P6 order dated 07.08.2019. The contention of the petitioner is that the counter affidavit filed by the 1st respondent, more particularly, paragraph 13 thereunder, would reveal that Ext.P3 representation was disposed of on 09.07.2019, when the case of the detenu was pending consideration before the Advisory Board. In paragraph 13 itself, it is specifically stated that the report of the Advisory Board was received by the 1st respondent only on 22.07.2019. In the light of the said facts specifically mentioned in the counter affidavit filed by the 1st respondent, it is submitted that the fact that Ext.P3 representation was considered and rejected during the pendency of the case of the detenu before the Advisory Board, cannot be disputed. Consideration and rejection of such a representation filed by a detenu preventively detained when his case is pending before the Advisory Board, is sufficient to invalidate the order of detention in the light of the dictum laid down by the Apex Court in Golam Biswas (supra), it is submitted.