Ashok Menon, J.
1. Brother of a detenu named Jose Sebastian @ Jose @ Anoop is the petitioner, who seeks protection of the detenu by directing his production under a writ of habeas corpus and to set him at liberty.
2. The detenu has been detained in execution of Ext.P1 detention order dated 26.1.2018 of the District Magistrate, Alappuzha under Section 3(1) of the Kerala Anti-social Activities (Prevention) Act, 2007 (‘KAAPA’ for short). The grounds for the detention order are mentioned in Ext.P2. It was on the basis of Ext.P4 report filed by the District Police Chief that Ext.P1 detention order was made and for executing the order of detention Ext.P3 memo was issued. The detenu is undergoing detention since 07-02-2018.
3. The detenu had four crimes registered against him at Alappuzha North Police Station. In three of those crimes, final reports have been submitted, while the fourth crime is under investigation.
4. The earliest of those crimes against the detenu was registered on 22-12-2013, as Crime No.1868/2013, the FIR of which is Ext.P5. The second crime against the detenu was registered as Crime No.392/2015, as per Ext.P9 FIR registered on 31-03- 2015. The third time the detenu got on the wrong side of the law is when Ext.P13 FIR was registered on 01-10- 2016 in Crime 1486/2016. On completion of the investigation, Exts.P8, P12 and P15 final reports were respectively filed in the aforesaid three crimes.
5. Considering the frequent involvement of the detenu in criminal cases, the Sub Inspector of Police, Alappuzha North Police Station initiated proceedings against him under Section 107 of the Code of Criminal Procedure by registering Ext.P20 FIR as Crime 130/2017, on 24-01-2017. Vide Ext.P21, the Sub Divisional Magistrate directed execution of a bond wherein the detenu undertook to keep peace as required under Section 107 of the Cr.P.C; which stood executed on 05-04-2017.
6. Despite the execution of the bond to keep peace, the detenu got himself involved in the fourth crime, which is registered as Crime No.1567/2017 on 04- 09-2017 vide Ext.P16 FIR. The detenu and the other coaccused moved for bail before the Sessions Court and obtained bail as per Ext.P19 order.
7. When, despite execution of the bond to keep peace under Section 107 of the Cr.P.C the detenu got involved in Ext.P16 Crime, the District Police Chief filed Ext.P4 report for initiating the proceedings under the KAAPA against the detenu resulting in Ext.P1 detention order being passed by the District Magistrate.
8. The petitioner has taken up several grounds to assail Ext.P1 detention order.
9. The first ground urged is that the name of the detenu is not Joseph, but in several crimes referred to above, he has been referred to as Joseph. In fact, he is only known by the name Jose @ Anoop, and Joseph is the name of the petitioner who is his brother. Hence, it is pointed out that it is a clear case of mistaken identity. The learned counsel appearing for the petitioner seeks to impress upon this Court that the police authorities are totally confused about the identity of the detenu and that the District Magistrate has not considered this aspect of mistaken identity in Ext.P1 order. The fact remains that the detenu is actually an accused only in crime No.1567/2017 in which the petitioner is also an accused and they along with other co-accused are granted bail vide Ext.P19 order.
10. The second ground to assail Ext.P1 detention order taken out by the petitioner is that there is unreasonable delay of five months between the last prejudicial activity and Ext.P1 detention order. No explanation whatsoever is forthcoming regarding the delay in initiating the proceedings under the KAAPA. There is also delay on the part of the District Magistrate in making the order of detention and therefore, Ext.P1 order needs to be set aside on that ground as well. The learned counsel relies on the decision 2013(1) KHC 49 [Jimesh Jose v.State of Kerala] in support of his argument.
11. The third ground taken up by the petitioner is that there are no sufficient materials to justify an order to classify the detenu as a ‘known rowdy’ coming within the purview of Section 2(p) of the KAAPA.
12. The fourth ground taken up for the detenu is that bail was granted by the Sessions Court vide Ext.P19 order on 13.10.2017, after considering all the facts regarding availability of the accused, likelihood of his jumping bail and also the possibility of repeating similar offences. On a detailed consideration of all these factors, the learned Sessions Judge found that the detenu along with the other co-accused are entitled to bail on imposing certain conditions. There is absolutely no indication in Ext.P1 order that any of the bail conditions has been violated by the detenu. Even in case, there was violation of the bail conditions, the prosecution had opportunity to approach the Sessions Court, which granted the bail, with a request to cancel the bail. No such application has been filed by the prosecution; because the prosecution is fully aware that the detenu has not violated the bail conditions.
13. The fifth ground taken up by the petitioner is that the detenu was not specifically informed about his right to engage a lawyer, get legal assistance and make a representation to the Government and the Advisory Board, as entitled under Section 7 of the KAAPA and therefore, the detention order is not sustainable.
14. That apart, it is also urged for the petitioner that the Government did not consider his written representation challenging the detention order. It is incumbent upon the Government to specifically consider the representation made by the detenu and in view of the fact that the Government has not passed any specific order on the representation made by the detenue, Ext.P1 detention order cannot be sustained. It is submitted that the petitioner had submitted a representation before the Advisory Board. That representation has also to be considered by the Government independently of the findings of the Advisory Board before confirming it. That was not done in this case. The Government has mechanically accepted and confirmed the findings of the Advisory Board without application of mind and directed detention of the petitioner under the KAAPA for six months, which according to the petitioner, is not sustainable and needs to be set aside.
15. We heard the learned counsel appearing for the petitioner as well as the learned Public Prosecutor appearing for the respondents. We proceed to examine whether the grounds urged by the petitioner are sustainable.
16. The first ground of objection raised by the petitioner is regarding the contradiction in the name of the detenu mentioned in the crimes. The learned counsel suggests that the identity of the detenu and his involvement in the crime has not been established. The contention is that Joseph is the name of the petitioner, who is the brother of the detenu and that the detenu was never known by the name Joseph. His name is Jose @ Anoop. In Ext.P5 FIR, the names of the accused persons are referred to as 15 unidentified persons. In Ext.P6 first information statement of the complainant, he has referred to one Joseph as one of the accused. In Ext.P7 report filed by the investigating officer and Ext.P8 final report filed in the crime, the investigating officer has referred to the first accused as Joseph @ Jose, S/o Sebastian. Likewise in Crime No.392/2015, the name of one of the accused in Ext.P9 FIR is referred to as Joseph. But in the final report, filed by the investigating officer at Ext.P12, the fourth accused is referred to as Jose Sebastian @ Joseph. In the third crime, where Ext.P13 FIR is registered, the assailants are described as unidentified persons. But in the final report filed by the investigating officer at Ext.P15, the first accused is referred to as Jose Sebastian @ Anoop. In the fourth crime, where the FIR is registered as Ext.P16, the second accused is referred to as Joseph and Ext.P17 first information statement of the complainant, one of the accused is referred to as Joseph @ Anoop. But in Ext.P18 statement of one of the witnesses, one of the assailants is referred to as Jose @ Anoop. In fact, in the fourth crime, both the petitioner and his brother are accused and they are referred to as Joseph and Jose separately. In the proceedings taken by the Police under Section 107, Ext.P20 FIR refers to the detenu as Jose Sebastian @ Anoop. In fact, it has to be understood that the name Jose is etymologically linked to the biblical name Joseph. The petitioner as well as the detenu are involved in crimes. At least in one of the crimes referred to in this petition, both the brothers are arrayed as accused. The final reports in three of the cases have been filed after completing investigation and in Ext.P1 proceedings also, the District Magistrate has proceeded under the premise that the person being detained is Jose Sebastian @ Jose @ Anoop, S/o Sebastian. We do not consider the argument of the learned counsel for the petitioner regarding the identity of the accused to be very relevant. There is also no contention that in the three crimes, where there is alleged to be mistaken identity, any person other than the detenu took bail. It cannot also be held that while making Ext.P1 order of detention, the District Magistrate or the District Police Chief who initiated the proceedings; was confused regarding the identity of the detenu. Hence, this ground of objection raised by the petitioner is not sustainable.
17. The second ground of objection raised by the petitioner is that there was unreasonable delay of five months between the last prejudicial activity and the detention order and no explanation whatsoever is forthcoming. There is also objection raised regarding the delay in passing the detention order by the District Magistrate. The proposal for proceeding under the KAAPA was forwarded by the sponsoring authority on 31.10.2017 and the last prejudicial anti-social activity carried out by the detenu allegedly was on 3.9.2017. The detention order as per Ext.P1 was passed on 26.1.2018 and executed on 6.2.2018. It is observed by the District Magistrate that the delay was on account of huge number of similar cases which had to be examined. This court in Jimesh's case has only observed that the delay must be explained. In Ext.P1, there is a clear explanation offered by the detaining authority regarding the reasons for the delay and we do not find anything to discard that, to find any unreasonable delay in passing the detention order. The second objection would therefore not lie.
18. The third ground taken up by the petitioner is that there are absolutely no materials to find the detenu to be declared as a 'known rowdy'. Under Section 2(p) of the KAAPA, it is essential that FIR in the case must be registered on complaints initiated by persons other than police officers. In the instant case, all the four complaints are on the basis of statements given by persons other than police officers. In one of the complaints, the complainant is also a juvenile, as is clear from Ext.P10 statement given by him. It is also essential that the investigating authority should have found that the detenu has committed the offences as mentioned in Section 2(t) of the KAAPA. The investigating officer has filed a final report in three crimes against the detenu. The fourth crime is pending investigation. It is also the requirement of the Act that there must be three separate instances not forming part of the same transaction. In the instant case, all the four crimes registered against the detenu are independent and separate instances, not connected with each other or formed part of the same transaction. It is also essential that the offences must have occurred within a period of seven years immediately preceding the detention order. From the FIRs produced, it is adequately clear that all the four crimes registered against the detenu had occurred within a period of seven years preceding the detention order, the first of the crime registered as Ext.P5 is on 22.12.2013 following an incident which took place on 21.12.2013. In 2015(4) KLT 942 [Jayalekshmi v. State of Kerala], a Division Bench of this Court has held that even the statement under Section 161 of the Cr.P.C could also be perused by the detaining authority to arrive at a conclusion regarding culpability. The detaining authority was satisfied about the involvement of the detenu in the aforesaid crimes on the basis of several documents produced by the sponsoring authority and therefore, we find absolutely nothing wrong with the detaining authority classifying the detenu as a 'known rowdy'. Hence, the objection raised by the petitioner on that ground cannot be sustained.
19. The fourth objection raised by the petitioner is that the police authorities could have proceeded to get the bail order of the Sessions Judge as per Ext.P19, cancelled, in case the detenu had violated the conditions of bail. It is pointed out that bail was granted after the Sessions Judge was satisfied that the detenu could be released on conditions inter alia requiring him not to repeat similar offences, which condition if violated the bail could stand cancelled. Without there being any incident of his violating the bail conditions, no detention order could have been passed. It is pertinent to note that in Ext.P1, the detaining authority has discussed that the petitioner got involved in the fourth crime as per Ext.P16 consequent to his executing a bond under Section 107 of the Cr.PC for maintaining peace. That itself is sufficient for the detaining authority to proceed under the provisions of the KAAPA. We do not deem it necessary that the authorities should have proceeded to get the bail order cancelled or that the said measure would have been a more effective substitute to the present proceedings. Hence, that objection also would not lie.
20. Yet another ground to assail the detention order taken by the petitioner is that the detenu was not informed about his right to make a representation as required under Section 7 of the KAAPA. The learned Public prosecutor has produced the communication given to the detenu on 8.2.2018 informing him about the detention order and it is specifically mentioned in that notice that he is entitled to seek assistance of a lawyer and has a right to legal aid as provided under Section 7(3) of the KAAPA. More over, the information that he was also entitled to make representation before the State Government as well as the Advisory Board constituted under the provisions of the KAAPA was available in the communication. The addresses of the authorities to whom the representation could be made, namely the Additional Chief Secretary (Home and Vigilance), HSA Department and the Chairman, Advisory Board are also provided in the intimation, which is issued by the Superintendent of Central Prison, Thiruvananthapuram. Hence, the argument of the petitioner that no specific intimation was given to the detenu regarding his right to legal aid and to make representation, is not sustainable. The said intimation has been acknowledged by the detenu by affixing his thumb impression, on 8.2.2018. Admittedly, the detenue also made a representation before the Advisory Board.
21. The final objection taken by the petitioner is that his representation to the Advisory Board was not considered by the Government, and hence, the detention order has to be set aside. It is argued that the order of confirmation of detention, by the Government, does not indicate that the representation made by the detenu was noticed or considered by the Government. The learned Public Prosecutor would argue that no representation whatsoever was made by the detenu to the Government. In support of his argument, the learned Public Prosecutor relies on the letter addressed by the Additional Chief Secretary to Government to the Secretary of the Advisory Board, wherein it is stated that no representation had been received by the Government from the detenu so far, as required under Section 9 of the KAAPA and thus the case of the detenu is to be placed before the Advisory Board within three weeks from the date of detention. After completing the proceedings before the Advisory Board, the entire file has been forwarded to the Government addressed to the Additional Chief Secretary, vide letter dated 13.3.2018. In the letter, it is clearly stated that the entire files together with the report and proceedings of the Advisory Board along with the representation made by the detenu dated 7.3.2018 is being forwarded for further action. The report of the Advisory Board also mentions the written representation made by the detenu through his counsel and the representation made to the Advisory Board is attached to the report. But, in the order of the Government dated 27.3.2018, detention of the detenu for a period of six months with effect from the date of detention was confirmed without any consideration of the representation available in the files as transmitted by the Advisory Board. In fact nothing is mentioned about the representation made by the detenu. In paragraph 4, it is stated thus:
'Accordingly, after having carefully examined the case afresh with reference to the relevant records and circumstances of the case, Government hereby confirms under Section 10(4) of the Kerala Anti-Social Activities (Prevention) Act, 2007, the order of detention read as 1st above and the order that the detention of Shri Jose Sebastian @ Jose @ Anoop, Thaipparambil Veedu, Ward-17 Maararikkulam south Panchayath, Alappuzha District will be continued for a period of six months from the date of detention.'
22. The representation made by the detenu dated 7.3.2018 forwarded along with the report of the Advisory Board has not been considered by the Government. It is pertinent to read Section 10(4) of the KAAPA, which states 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.'
A reading of this sub-Section would indicate that the Government has no option if the Advisory Board has an opinion that there is no sufficient cause for detention of the person. On the other hand, when the Advisory Board is of the opinion that there is sufficient cause for detention of a person, it is only optional for the Government to confirm the detention. There is a liberty given to; nay, an authority and power conferred on, the Government to over-rule the findings of the Advisory Board and to release the detenu, without accepting the report. But for that purpose, it is incumbent upon the Government to go through all materials placed before the Government as well as the Advisory Board. The argument of the learned Public Prosecutor that no representation was made to the Government separately is not acceptable to us. It is true that soon after passing the order of detention by the detaining authority, it was served on the detenu and he was also informed and an opportunity was afforded to him to consult his lawyers and all reasonable assistance was directed to be given to him in making any representation against the detention order to the Government or to the Advisory Board. The detenu has in his option filed a representation before the Advisory Board. Initially, the Government has forwarded the file to the Advisory Board in which it is mentioned that no representation was received by the Government from the detenu. The detenu however filed a representation before the Advisory Board which was retransmitted to the Government with the recommendation of the Board. But, the representation to the Government need not necessarily be one against the detention order, prior to its reference to the Advisory Board.
23. Section 9 of the KAAPA insists that in every case where a detention order has been made under the Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected. It is true that no representation was made at that point in time. But subsequent to the matter being placed before the Advisory Board, the detenu had made a representation before the Advisory Board and that also was considered by the Advisory Board while arriving at a decision holding the opinion that there was sufficient cause for detention of the person. If a representation was made before the Government before the three weeks stipulated, it goes without saying that the same had to be transmitted to the Advisory Board. Section 7(2) specifically speaks of the detenu's 'right to represent to the Government and the Advisory Board'. Sub-section (3) mandates that the Superintendent of The Jail in which the detenu is held shall give 'reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or the Advisory Board'. The use of the word 'and' in sub-section (2) and the use of 'or' in sub-section (3) assumes a special significance insofar as the representation filed before either of these authorities; being required to be looked into and considered by both. While accepting the recommendation of the Board under Section 10(4), it is essential that all records including the representation made by the detenu have to be considered by the Government.
24. In 1991 KHC 918 [Smt.Gracy v. State of Kerala and Another], the Honourable Supreme Court held as follows:
'The question, therefore, is: Whether one of the requirement of consideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government? On principle, we find it difficult to uphold the learned Solicitor General's contention which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Article 22(5) in the context of extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not a free agent. Article 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implies the duty to consider and decide the representation when made, as soon as possible. Article 22(5) speaks of the detenu's representation against the order, and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority.'
The learned Public Prosecutor relies on a later decision of the Honourable Supreme Court reported in 2001 KHC 1710 [R.Keshava v.M.B.Prakash & Others] wherein after referring to the decision in Smt.Gracy (supra), the Honourable Supreme Court held that no duty is cast upon the Advisory Board to furnish the whole of the record to the Government along with its report and the representation addressed to it need only be considered by itself. It was also declared that in Smt.Gracy (supra), it was not held that any such duty was cast upon the Board but even if the observations are stretched to that extent, their Lordships felt that those observations were uncalled for in view of the scheme of the Act and the mandate of the Constitution, Thus the Honourable Supreme Court, in a later decision of a co-ordinate Bench came to the conclusion that there was no error of law or jurisdiction, in the order of detention being confirmed by the Government without considering the representation made before the Board. The learned Public Prosecutor persuades us to follow the later decision of the Apex Court.
25. Immediately we have to notice the Constitution Bench decision of the Honourable Supreme Court in AIR SCW 362 [K.M. Abdulla Kunhi Vs. Union of India] relied on in Smt. Gracy (supra) and quoted from, as below:
'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 cause 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 Article 22 read with Section 8(c) of the Act. (See: Sk. Abdul Karim v. State of West Bengal, 1969 (1) SCC 433: AIR 1969 SC 1028; Pankaj Kumar Chakrabarty v. State of West Bengal, 1970 (1) SCR 543: AIR 1970 SC 97; Shyamal Chakraborty v. The Commissioner of Police, Calcutta, 1969 (2) SC
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C 426: AIR 1970 SC 269; B. Sundar Rao v. State of Orissa, 1972 (3) SCC 11 : AIR 1972 SC 739; John Martin v. State of West Bengal, 1975 (3) SCR 21 1: AIR 1975 SC 775; S. K. Sekawat v. State of West Bengal, 1975 (2) SCR 161: AIR 1975 SC 64; and Haradhan Saha v. State of West Bengal, 1975 (1) SCR 778: AIR 1974 SC 2154.' 26. It is also pertinent to note that in R.Keshava (supra), the detention was being considered under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 (COFEPOSA), whereas in the instant case, it is under the KAAPA. There is no specific provision under the COFEPOSA which enables the detenu to make a representation before the Advisory Board or the Government, which is analogous to Section 7(2) and (3) of the KAAPA. Both the cited decisions looked at the matter in the context of Article 22(5). Article 22(5) specifically spoke of consideration of any representation by the Government. As earlier noticed, in the KAAPA, sub-section (3) of Section 7 speaks of a right to represent before the Government and Advisory Board while sub-section (3) requires the Superintendent of the Jail where such person is detained, to afford him reasonable opportunity to consult a lawyer and reasonable assistance in making a representation against the detention order to the Government or the Advisory Board. The consideration hence, when made before one authority, has to be by both. Hence, on facts and on law, the decision in R.Keshava (supra) can be distinguished. Apart from the provisions under Article 22 of the Constitution of India, there is a specific provision provided in KAAPA for affording an opportunity to the detenu to make a representation to the Government or to the Advisory Board. Moreover, in R.Keshava (supra), the representation made to the Advisory Board was omitted to be sent along with the report of the Government and that is the reason why the Government was found to be justified in confirming the order of detention on perusal of the records and the documents, excluding the representation made by the detenu to the Advisory Board. In the instant case, we have already pointed out earlier that the representation made by the detenu to the Advisory Board has been forwarded to the Government along with the report of the Advisory Board. Hence, it was incumbent upon the Government to go through the representation made before confirming the order of detention. In the absence of that, the detention order will have to be quashed. For the foregoing reasons, the petitioner is entitled to succeed. For the reason referred to by us, Ext.P1 detention order is liable to be quashed. The detenu is entitled to be released forthwith. The Superintendent of Central Prison, Viyyur is directed to set the detenu at liberty forthwith, if he is not wanted in connection with any other crime. Registry is directed to issue a copy of this judgment to the Superintendent of Prison, Viyyur for further action forthwith. The Writ Petition is allowed. No costs.