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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.
Issues Involved:
1. Whether a person detained under the Kerala Anti-Social Activities (Prevention) Act (KAAPA) is entitled to be informed of the right to make a representation to both the Government and the Advisory Board, or if it is sufficient to inform them of the right to make a representation to either one of these authorities. Detailed Analysis: 1. Right to Make Representation: The primary issue in this writ petition is whether the detenu, detained under Section 3(1) of the KAAPA, should be informed of the right to make a representation to both the Government and the Advisory Board, or if it suffices to inform them of the right to make a representation to either one of these authorities. The detenu, Dini Babu, was arrested and detained as per the order dated 22.8.2015, which was confirmed on 28.10.2015. 2. Misleading Information in Grounds of Detention: The petitioner's counsel argued that the detenu was misled by the statement in Ext. P2, which suggested that he could only elect either the Government or the Advisory Board for making a representation. This, according to the counsel, violated the mandatory requirement of Section 7 of the KAAPA, thereby justifying the release of the detenu. 3. Prosecution's Argument: The Additional Director General of Prosecution countered that the information provided in Ext. P2 and Ext. R3(c) was clear and did not imply that the detenu's right to make a representation to one authority negated the right to make a representation to the other. 4. Constitutional and Statutory Provisions: Article 22(5) of the Constitution mandates that a person detained under preventive detention laws must be informed of the grounds of detention and be given the earliest opportunity to make a representation against the order. Section 7 of the KAAPA requires that the detenu be informed in writing of the right to represent to both the Government and the Advisory Board. 5. Judicial Precedents: The judgment referenced several Supreme Court decisions, including Kamleshkumar Ishwardas Patel v. Union of India, which emphasized that the right to make a representation is fundamental and should not be restricted to one authority. The decision in KM. Abdulla Kunhi and B.L. Abdul Khader v. Union of India underscored that the Government's obligation to consider the representation is distinct from the Advisory Board's role. 6. Division Bench Ruling: A Division Bench of the Kerala High Court in Abdul Razack A.A. v. State of Kerala held that the detaining authority must inform the detenu of the right to make representations to both the Government and the Advisory Board. 7. Distinction from R. Keshava Case: The court distinguished the present case from R. Keshava v. M.B. Prakash, where the Supreme Court held that the detenu's failure to make a representation to the Government did not render the detention order unconstitutional. The court noted that under KAAPA, Section 7(2) explicitly requires informing the detenu of the right to represent to both authorities. 8. Legislative Intent: The court emphasized that the word "and" in Section 7(2) of the KAAPA indicates that the detenu must be informed of the right to make representations to both the Government and the Advisory Board. This dual right is intended to provide a meaningful opportunity for the detenu to challenge the detention. 9. Conclusion: The court concluded that the information provided to the detenu, which suggested a choice between the Government and the Advisory Board, was contrary to the statutory requirement. This miscommunication vitiated the continued detention of the detenu. Consequently, the court ordered the immediate release of the detenu unless required for any other case. Judgment: The writ petition was allowed, and the detenu was ordered to be released forthwith. The Registry was directed to communicate the gist of the order to the Superintendent of Central Prison, Viyyur.
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