[KAAPA] Detention Order Can Be Quashed If Representation Of Detenu Is Not Considered In Timely Manner: Kerala HC

Article 22(5) of the Constitution says that every person who is under preventive detention will be afforded an opportunity to make a representation against the order of detention. The Division Bench of Justice Raja Vijayaraghavan V. and Justice G. Girish held that the words of the Article means that the representation is to be considered as soon as possible. Any unexplained delay in the consideration of the representation would make the continued detention impermissible and illegal.

“The words “as soon as may be” occurring in clause (5) of article 22 reflect the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an unavoidable delay. Though there is no period prescribed either under the Constitution or under the concerned detention law, within which the representation should be dealt with, there shall not be any supine indifference or slackness in considering the representation.

Under Section 7 of KAAPA, a person put under preventive detention has the right to make a representation before the Advisory Board or Government soon after his detention. The Court said that even if the initial order of detention is confirmed by the Government, the representation still has to be considered. The Government has the power to revoke the representation after considering the representation.

In this case, a writ of habeas corpus was filed by the wife of the person who was put in preventive detention under KAAPA. The detention order was executed on 11.4.2024. He was detained on 11.06.2024. A representation was made by him on 13.06. 2024. He filed a Writ petition on 14.06.2024. It was only when the Court sought instruction as to the disposal of the representation, that it was submitted that the Government passed orders rejecting the representation on 18.7.2024.

Under Section 3(3), when the order of detention is made by an authorized officer, he shall forthwith report the fact to the Government and Director General of Police together with a copy of the order and supporting materials.

Here, the detention order was passed on 11.04.2024 but the order and accompanying documents were forwarded to the government only on 21.06.2024. The Court held that this delay of more than 2 months and 11 days is enough to vitiate the order of detention.

On these two grounds, the court quashed the order of preventive detention.

Counsel of the Petitioner: Advocates M. H. Hanis, P. M. Jinimol, T. N. Lekshmi Shankar, Nancy Mol P., Anandhu P. C., Neethu G. Nadh, Ciya E. J.

Counsel of the Respondent: Public Prosecutor K. A. Anaz, Additional Director General of Prosecution

Case No: WP(Crl.) 641/ 2024

Case Title: Saritha K. P. v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 462