Pranav B Prem

In a significant ruling, the Kerala High Court has held that the detaining authority under the Kerala Anti-Social Activities Prevention Act, 2007 (KAAPA) must provide the detenu with legible copies of all relevant documents forming the basis for the detention order. The Court emphasized that failure to provide such legible copies would violate the detenu’s constitutional and statutory rights, thereby rendering the detention order legally unsustainable. The Division Bench of Justice P. B. Suresh Kumar and Justice Jobin Sebastian delivered the judgment in a writ petition filed by Sneha Vijayan, wife of the detenu Raj Kiran K., challenging the detention order issued under Section 3(1) of KAAPA.

Right To Effective Representation

The Court noted that under Article 22(5) of the Constitution and Section 7(2) of KAAPA, the detenu has the right to make an effective representation before the Advisory Board and the Government. However, the detenu can exercise this right meaningfully only if he is provided with legible copies of all the documents relied upon by the detaining authority. The Court observed: “Only when the said procedure is scrupulously complied with, the detenu can file an effective representation before the Advisory Board and the Government. The right of the detenue to file an effective representation before the Government as well as the Advisory Board is a constitutional right under Article 22(5) and also a statutory right.”

Failure To Provide Legible Copies

The petitioner alleged that the detaining authority had failed to provide legible copies of crucial documents related to the case registered against the detenu, particularly those pertaining to his alleged last prejudicial activity. This, she contended, prevented the detenu from making an effective representation against the detention order. On verification of the original records, the Court found that several documents, including the First Information Statement (FIS) and the mahazar, were not legible. Despite the detenu signing a written acknowledgment that he had received copies, the Court held that the actual legibility of the documents was in question. It noted: “On verification of the said documents, we are convinced that some of those documents are not legible. Moreover, a perusal of the representation, made by the detenu before the Advisory Board, reveals that in the said representation also it is mentioned that the copy of the FIS, the copy of the mahazar etc., furnished to him are not legible.” The Court, therefore, concluded that the detenu was “handicapped in filing an effective representation before the Advisory Board as the copies of the relied-upon documents served on him are illegible.”

Need For Additional Material Beyond FIR

The Court also examined whether the last case considered by the detaining authority could qualify as a valid basis for detention. The petitioner argued that the mere registration of an FIR was insufficient to justify detention and that further material was required to establish the necessary subjective and objective satisfaction of the detaining authority. The Court held: “It is trite that something more than mere registration of an FIR is required to reckon a case, that is under investigation, for the purpose of passing a detention order. In other words, apart from the FIR, there must be some additional materials to make a case qualified to be reckoned for passing a detention order.” Since the relied-upon documents were illegible, the Court found it “highly suspicious as to how the detaining authority arrived at a conclusion that the accused’s role in the last prejudicial activity is prima facie established.” It further stated that if the last case was disregarded, “there would be a long delay between the registration of the last qualified case and the order of detention.”

Supreme Court Precedent

The High Court relied on the Supreme Court’s ruling in State of Manipur v. Buyamayum Abdul Hanan [2022 SCC Online SC 1455], which held that: “The right of personal liberty and individual freedom which is probably the most cherished is not, in any manner, arbitrarily to be taken away from him even temporarily without following the procedure prescribed by law.” The Supreme Court had ruled that failure to provide the detenu with materials necessary to make an effective representation would render the detention order illegal.

Detention Order Set Aside

Given the procedural lapses, the Kerala High Court set aside the detention order and directed the immediate release of the detenu. The Court concluded: “An order of detention, under KAA(P) Act has wide ramifications as far as the personal as well as the fundamental rights of an individual are concerned. Therefore, the detaining authority should have acted with much alacrity in ensuring that all the procedural formalities are adhered to.” The Superintendent of Central Prison, Viyyur, Thrissur, was directed to release the detenu forthwith if his detention was not required in connection with any other case.

Cause Title: Sneha Vijayan v State of Kerala

Case No: WP(CRL.) NO. 1392 OF 2024

Date: January-30-2025

Bench: Justice P. B. Suresh Kumar, Justice Jobin Sebastian

[Read/Download order]