WILSON MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) Does the omission to furnish all necessary documents which were already furnished along with the original order of detention again when the modified order of detention was served on the detenu affect the validity of his detention under Section 3 of the Kerala Anit-social Activities (Prevention) Act, 2007 (hereinafter referred to as the 'KAAPA') This is the short question that arises for consideration in this petition.

(2.) Petitioner is the brother of Edison Mathew, the detenu. The detenu was involved in several crimes registered against him. On the basis of the crimes registered against him, he without any dispute falls within the sweep of the definition of a 'known rowdy' in Section 2(p) of the KAAPA. He was arrested and was in custody in connection with several cases from 16-7-2008. He secured bail in those cases one after other and could walk out of the prison on 19-1-2009. At that juncture the detenu was arrested as per an order of detention dt. 4-1-2008 [Ext. R-1(a)] passed by the 2nd Respondent herein. He was detained in prison. All necessary formalities in respect of that detention on 19-1-2009 under order dt. 4-1-2008 were satisfied. But it appears that the 2nd Respondent realised that the said order of detention cannot be justified in the light of the decision in Anitha Bruse v. State of Kerala, 2008 2 KerLT 857 and subsequent circulars issued by the Government. Thereupon the 2nd Respondent modified the order of detention in exercise of the powers under Section 13 of the KAAPA by passing Ext. P-1 order dt.22-1-2009. That order along with grounds was served on the detenu on 22-1-2009 while he was detained in prison. He continued under detention on the strength of the original order as modified by the subsequent order Ext P-1 dt. 22-1-2009. His detention was approved by the Government later under Section 3(3) of the KAAPA. Reference was made to the Advisory Board and the Advisory Board recommended his continued detention and the Government had confirmed the order of detention under Section 10 of the KAAPA. The detenu continues to be under detention now.

(3.) The Petitioner, who is the detenu's brother, has now come to this Court with a prayer that a Writ of Habeas Corpus may be issued to cause the production of the detenu, to set aside the modified order of detention Ext. P-1 and to set the detenu,at liberty.