P K BOSE Vs. SECRETARY TO GOVERNMENT

JUDGEMENT

(1.) This petition for issue of writ of habeas corpus has been referred by the Division Bench to decide the following question:

(2.) The brief facts necessary for our consideration are as follows: The brother of the petitioner is detained under the KAAPA by the order Exhibit P5 dated 20.04.2009. After his arrest on 28.04.2009, his detention was approved by the Government under Section 3(3) of KAAPA and after obtaining the opinion of the Advisory Board, the Government issued Exhibit P8 order confirming the order of detention. It is the case that the detenu is a known goonda, he having been involved in five cases, and hence the order of detention was passed and the grounds of detention thereto. The main contention raised by the detenu is that if as per Section 3(1) of KAAPA the Authorised Officer passes an order of detention, which is subject to confirmation under Section 10(4), such order requires specification of time of detention and if such period is not mentioned, the entire detention order gets vitiated.

(3.) This very question was considered by a Division Bench of this Court in the case of Sathi v. State of Kerala and Ors. in W.P.(Crl.). No. 201 of 2009 [decided on 2.7.2009] and considering the decision of the apex Court in Makhan Singh v. State of Punjab, 1952 AIR(SC) 27 and a decision of this Court in the case of Anitha Bruse v. State of Kerala, 2008 2 KerLT 857 though rejected such contention of the detenu, felt necessary that such question requires reconsideration. The apex Court in the case of Makhan Singh (supra) has in clear terms held that the Detaining Authority is not expected to fix the period of detention under the Act. Similar is the law laid down in the case of Anitha Bruse by the Division Bench of this Court. It is to be noted that even in the later pronouncement of the apex Court in the case of T. Devaki v. State of Tamil Nadu, 1990 AIR(SC) 1086 very identical situation arose and the apex Court observed this: