TMI Blog2016 (1) TMI 1474X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Advisory Board as well as to the Government was denied by the aforesaid statement in the grounds of detention. The learned counsel submitted that even in the separate communication (Ext. R3(c)) to the detenu given at the time of arrest indicates that the detenu would have the right to make a representation either to the Additional Chief Secretary or to the Chairman of the Advisory Board. 3. The learned Additional Director General of Prosecution submitted that in Ext. P2 as well as in Ext. R3(c), the idea communicated to the detenu is clear. He submitted that, at any rate, neither Ext. P2 nor Ext. R3(c) would give any indication that once the detenu makes a representation to either of the authorities, his right to make a representation to the other authority is taken away. 4. Article 22(5) of the Constitution of India provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. S. 7 of the KAAP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government in referring the matter to the Advisory Board. 6. In KM. Abdulla Kunhi and B.L. Abdul Khader v. Union of India Ors AIR 1991 SC 574 a Constitution Bench of the Supreme Court held thus: 11. It is now beyond the pale of controversy that the constitutional right to make representation under Clause (5) of Article 22 by necessary implication guarantees the constitutional right to a proper consideration of the representation. Secondly, the obligation of the Government to afford to the detenu an opportunity to make representation and to consider such representation is distinct from the Government's obligation to refer the case of detenu along with the representation to the Advisory Board to enable it to form its opinion and send a report to the Government. It is implicit in Clauses (4) and (5) of Article 22 that the Government while discharging its duty to consider the representation, cannot depend upon the views of the Board on such representation. It has to consider the representation on its own without being influenced by any such view of the Board. The obligation of the Government to consider the representation is different from the obligation of the Board to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a representation only to the Advisory Board and not to the Government, he cannot thereafter complain that the Government did not consider his representation. The question considered in R. Keshava's case was whether the Government was bound to consider the representation which was submitted by the detenu before the Advisory Board and which the Advisory Board was expected to forward to the Government. In R. Keshava's case, the Supreme Court held that it was not as if there are two separate and distinct provisions for representation to two different authorities, namely, the detaining authority and the Advisory Board, both having independent power to act on its own. The Supreme Court further held thus: We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate government/authorities against his order of detention as mandated in Art. 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate Government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that there is sufficient cause for the detention of the person concerned is received by the Government. The right of the Government to revoke an order of detention is not fettered by the opinion given by the Advisory Board. The power of the Government under S. 13 is unrestricted. 10. Unlike an order under S. 15(1) of the KAAPA, the detenu will not be given notice before an order under S. 3(1) is passed. A person who has been detained under S. 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 (see S. 7(1) of the KAAPA). 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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