[KAAPA] Period Of Detention Can Only Be Fixed By Govt Upon Getting Advisory Board's Report, Can't Be Fixed By Magistrate: Kerala High Court

The Court Observed:

“Only the Government is vested with the power to fix the period of detention under Section 10(4). The power exclusively vested with the Government under Section 10(4) of KAAPA to fix the period of detention can be exercised only after receiving the report of the Advisory Board.”

The Division Bench of Acting Chief Justice A. Muhamed Mustaque and Justice S. Manu added that any scheme of preventive detention should be in harmony with Article 22 of the Constitution. As per Article 22(4), a person cannot be committed to preventive detention for more than 3 months unless there is a report from the Advisory Committee with an opinion that there are reasons to detain the person for a longer period.

The son of the petitioner in the case was committed to preventive detention for a period of one year by the District Magistrate. The petitioner contended that the Collector cannot fix the detention period. The Act exclusively vests this authority with the Government.

The Government Pleader submitted that the Home Department of the State by a letter had asked the District Magistrate to propose the period of detention while issuing the detention order. This order was later modified and the District Magistrates were instructed that there was no need to mention the period of detention. In this case, the order was issued while the earlier instruction was in force.

The High Court observed that under Section 3 of the KAAPA, the Government can only delegate the powers of issuing an initial order of detention. That order has to be approved by the Government within 12 days. Otherwise, the order will no longer be in force.

It said that the Government has to place before the Advisory Board, the grounds on which the detention order has been made within 3 weeks from the date of detention. The Board has to submit its report to the Government within 9 weeks from the date of detention. If the Board says that there is sufficient cause for the detention, the Government can continue the detention for the time it thinks fit. If the Board is of the opinion that there is no sufficient cause for detention, the person has to be released at once.

Thus, the Court observed that only the Government can fix the period of detention. The Act does not contemplate fixing of period of detention while issuing the initial order of detention.

The Government Pleader argued that the order need not be invalidated because it mentions the period of detention. The period mentioned in the order is of no consequence. The Government has to confirm the order if the person is to be detained for more than 12 days. Further, the continuation of detention will depend on the report of the Advisory Committee. If the Advisory committee opines that there is sufficient cause to continue detention, the Government will then have to specify the period of detention.

The Court rejected this argument relying on the Supreme Court judgment in Makhan Singh Tarsikka v State of Punjab (1951). The Supreme Court had held that a direction to keep the detenu under detention for a specific period would tend to prejudice a fair consideration of his case before the Advisory Board. The High Court held that in preventive detention, the law should be followed strictly and any deviations or dilutions will render the detention invalid. The Court is also required to interpret the law strictly as liberty of individual is at stake. The detention order even goes against Article 22 of the Constitution. Thus, the error goes to the root of the matter and hence the order cannot be saved.

The person was earlier detained for a period of 6 months under KAAPA and was released on 27.10.2023. He was later involved in two more criminal cases. The present detention order was passed in an issue that occurred on 22.02.2024. The petitioner argued that even though the petitioner was in judicial custody and all the materials relied on for passing the detention order were already available, the District Magistrate passed the order only on 04.05.2024. There is a delay of more than 2 months. Therefore, the live link essential for sustaining the detention order was snapped in the case and hence the detention is invalid.

To this, the Government Pleader submitted that the authority submitted the proposal of preventive detention when there was a chance of the detenu being released on bail and committing prejudicial activities again.

The Court said that there was no culpable delay. It is only reasonable for the authorities to move when there is a chance of the person being released under regular bail. If at the initial period, where the chance of granting bail is remote, the authorities had no reason to apprehend that he would be involved in activities affecting public tranquility as he was already in prison.

The Court ordered to release petitioner's son if he was not required in any other proceedings.

Counsel for 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 for Respondents: Public Prosecutor Adv. Anas

Case No: WP (Crl.) 606/ 2024

Case Title: Sindhu v State of Kerala and Others

Citation: 2024 LiveLaw (Ker) 430