NAZARUDEEN Vs. STATE OF KERALA

JUDGEMENT

(1.) H. Nazarudeen, the petitioner in W.P.(C) No. 2161 of 2015, challenges Ext. P4 order of detention, No. 27936/SSA1/2005/Home dated 30.6.2005, of the Government of Kerala, Home (SSA) Department, issued under S. 3(1)(i) and 3(1)(ii) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (hereinafter referred to as "COFEPOSA Act") at its pre-execution stage. Before Nazarudeen filed W.P.(C) No. 2161 of 2015, his father-in-law Mohammed Iqbal filed W.P.(C) No. 19740 of 2014 for the same purpose. An objection was raised by the respondents in W.P.(C) No. 19740 of 2014 that ah order under S. 3 of the COFEPOSA Act could not be challenged at its pre-execution stage by a person other than the person against whom the order of detention was issued. The question of maintainability of the Writ Petition filed by Mohamed Iqbal, the father-in-law of Nazarudeen, was argued in detail. Before the arguments concluded, W.P.(C) No. 2161 of 2015 was filed by Nazarudeen himself. Therefore, W.P.(C) No. 19740 of 2014 has become infructuous. Hereinafter H. Nazarudeen is referred to as the petitioner.

(2.) The petitioner has produced the order of detention as Ext. P4. According to him, he obtained Ext. P4 order under the Right to Information Act. This is disputed by the learned counsel appearing for the respondents. It is not known how the petitioner got a copy of the order of detention before he was arrested. In Subhash Popatlal Dave v. Union of India & Anr., 2012 7 SCC 533, the Supreme Court held that since clause (5) of Article 22 of the Constitution provides that the grounds for detention are to be served on a detenu after his detention, the provisions of S. 3 of the Right to Information Act, 2005 cannot be applied to cases relating to preventive detention at the pre-execution stage. The Supreme Court held that S. 3 of the Right to Information Act has to give way to the provisions of clause (5) of Article 22 of the Constitution. Even the provisions relating to production of an arrested or detained person, contained in clauses (1) and (2) of Article 22 of the Constitution, have in their application been excluded in respect of a person detained under any preventive detention law.

(3.) In Mariamma Antony v. State of Kerala, 2014 1 KerLT 100, a Division Bench of this Court (in which Justice K.T. Sankaran was a party) held that a person against whom an order of detention is passed under S. 3 of the Kerala Anti Social Activities (Prevention) Act, 2007 (hereinafter referred to as "KAAPA"), is not entitled to get a copy of the order of detention, grounds of detention or document relied on by the detaining authority, before execution of the order of detention. The Division Bench held thus: