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2016 (1) TMI 1474 - HC - CustomsPreventive detention - Dual right of the detenu to make a representation to the Advisory Board as well as to the Government - Whether a person who has been detained under the Kerala Anti-Social Activities (Prevention) Act (KAAPA) is entitled to be informed that he has a right to make a representation to the Government as well as to the Advisory Board against the detention or whether it is sufficient that he is informed that he has got a right to make a representation either to the Government or to the Advisory Board? - HELD THAT:- Unlike an order under Section 15(1) of the KAAPA, the detenu will not be given notice before an order under Section 3(1) is passed. A person who has been detained under Section 3(1) of the KAAPA does not get any opportunity before his arrest. His right accrues only on his arrest, at which point of time, the officer arresting him shall read out the detention order to him and give him a copy of such order - The grounds of detention along with copies of the relevant documents shall be furnished to the detenu as soon as possible and, at any rate, within five days of his detention. A detenu under the Preventive Detention Laws would be arrested and detained abruptly. Unlike in the trial of a criminal case, the person concerned who has been detained under the KAAPA would not get much opportunity to mould his defence and to put forward his arguments. A detenu's right is confined to make a representation to the Government as well as to the Advisory Board. The Advisory Board shall also hear the detenu if he expresses a desire to be heard in person. Before the Government, the detenu will not get an opportunity to be heard in person while considering the representation. The rights of the detenu would be protected by providing a meaningful opportunity to him to make representations as provided under Section 7(2) of the KAAPA. The wording of Section 7(2) and particularly the word "and" occurring in the expression "right to represent to the Government and before the Advisory Board" makes the position clear that the Legislature intended that the detenu should be informed that he has distinct rights of making a representation to the Government as well as to the Advisory Board. The detaining authority cannot substitute the word "or" for the word "and" occurring in Section 7(2) of the KAAPA. The information supplied in Ext. P2 representation is contrary to the information which is contemplated under Section 7(2) of the KAAPA. The continued detention of the detenu is, therefore, vitiated. For the aforesaid reasons, the continued detention of the detenu is illegal and he shall be released forthwith. Petition allowed.
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