IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(Crl.).No. 366 of 2010(S) --------------------------- PETITIONER(S): --------------- MARY KURIAKOSE, W/O.LATE MANI KURIKOSE, AGED 63 YEARS, KALARIKKAL HOUSE, THURUTHI PO, ERNAKULAM DISTRICT. BY ADV. SRI.O.V.MANIPRASAD SRI.SAJU J PANICKER SRI.LIJO KURIAN JOSE RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARUAT, THIRUVANANTHAPURAM-695 001. 2. THE DISTRIACT COLLECTOR & DISTRICT MAGISTRATE, ERNAKULAM. 3. THE DISTRICT SUPERINTENDENT OF POLICE, ERNAKULAM RURAL, ALUVA, ERNAKULAM DISTRICT PIN-682 031. 4. THE SUB INSPECTOR OF POLICE, KURUPPUMPADY POLICE STATION,KURUPPUMPADY, ERNAKULAM DISTRICT,PIN-683 545. 5. THE SUPERINTENDENT OF CENTRAL PRISON, VIYYOOR, THRISSUR-PIN-680 010. DIRECTOR GENERAL OF PROSECUTION SRI.K.K.RAVINDRANATH SR. GOVERNMENT PLEADERS SRI.P.RAVINDRA BABU & SRI.K.J.MUHAMMED ANZAR THIS WRIT PETITION (CRIMINAL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.BASANT & M.L.JOSEPH FRANCIS, JJ. *********************** W.P(Crl) No.366 of 2010 ***************************** Dated this the 21st day of October, 2010 JUDGMENT BASANT, J. Does the failure to convey to the detenu under Section 7(2) of the Kerala Anti-social Activities (Prevention) Act, 2007 (hereinafter referred to as `the KAAPA') the period within which he should make a representation to the Advisory Board, amount to frustration/infringement of his constitutional right under Article 22(5) or the statutory right under Section 7(2) of the KAAPA? Can that alleged infraction lead to the invalidation of the continued detention of the detenu? These interesting questions, inter alia, are raised in this Writ Petition filed by the petitioner, the mother of one Saneesh (hereinafter referred to as `the detenu'), who is preventively detained by an order passed under Section 3 of the KAAPA. 2. This is the second time that the petitioner is coming to this Court to assail preventive detention of her son, the detenu. The detenu was ordered to be detained under Ext.P1 order dated 20.04.2010. He was actually taken into custody and detained on W.P(Crl) No.366 of 2010 2 26.04.2010. The order was approved by the Government under Ext.P3 order passed under Section 3(3) of the KAAPA dated 06.05.2010. The order of confirmation was passed under Section 10(4) of the KAAPA on 01.07.2010 under Ext.P4 order. The detenu will have to remain in custody till 26.10.2010. 3. The petitioner had come to this Court earlier with W.P (Crl) No.163 of 2010 assailing the impugned order of detention and the continued detention of the detenu. By Ext.P8 judgment dated 16.07.2010, the said petition was dismissed. 4. Undaunted, the petitioner has come to this Court again to assail the order of detention and the continued detention of the detenu. Facts have been adverted to in detail in Ext.P8 judgment. This judgment will essentially have to be considered as a continuation of Ext.P8 judgment. We are hence not adverting to all the relevant facts in detail in this judgment. 5. Arguments have been advanced before us by the learned counsel for the petitioner and the learned Government Pleaders. The learned Director General of Prosecution Sri.K.K.Ravindranath had also appeared to clarify the legal position in the light of certain interesting contentions raised by the learned counsel for the petitioner. We have heard both W.P(Crl) No.366 of 2010 3 sides. The learned counsel for the petitioner assails the impugned order on the following 4 grounds: i) Ext.P1 order of detention is in English. Copy thereof in Malayalam has not been furnished to the detenu. This amounts to infraction of his rights under Section 7(1) of the KAAPA. ii) There has admittedly been a gap of time between the arrest of the detenu and the furnishing of the copy of the order of detention and this amounts to infraction of the mandate of Section 7(1) of the KAAPA. iii) There has been inordinate delay in the consideration of Ext.P5 representation to the Government and this amounts to infraction of the right of the detenu under Article 22(5) of the Constitution and Section 7(2) of the KAAPA. iv) The rights of the detenu under Article 22(5) of the Constitution and Section 7(2) of the KAAPA have been infringed inasmuch as the time limit within which representation is to be made to the Advisory Board has not been specified and conveyed to the detenu. W.P(Crl) No.366 of 2010 4 6. Ground No.(i) The petitioner has a grievance that the alleged detenu does not know English. The counsel places reliance on a plethora of precedents to contend that effective communication means communication in a language which the detenu can understand. Inasmuch as the detenu does not know the English language, furnishing of copy of the order of detention Ext.P1 (in English) to the detenu does not satisfy the mandate of Section 7(1) of the KAAPA. 7. We must immediately note that this contention was not earlier raised when Ext.P8 judgment was passed. We are not banking on the principles of resjudicata or constructive resjudicata. The question is whether Ext.P1 order of detention was really understood by the detenu. It is trite that conveniently ignorance of language cannot be raised by the detenu to claim infraction of the provisions to justify invalidation of the detention. In this context it is of crucial relevance to note that there is an endorsement in Ext.P1 of the detenu that the order was read over to him and he has understood the same. What is required is that the detenu must be apprised of the grounds of detention. In the instant case, the endorsement reveals that the W.P(Crl) No.366 of 2010 5 detenu had heard the order of detention and has understood the same. It is in this context to be noted that this grievance was not raised earlier when the very same order of detention was challenged by the petitioner herself on behalf of the detenu. There is not even an assertion of the detenu that he did not understand the contents of Ext.P1. We are satisfied that there is no merit in the grievance raised now that the non furnishing of a copy of Ext.P1 in Malayalam has worked out prejudice and amounts to infraction of the constitutional right under Article 22 (5) and the statutory right under Section 7(1) of the KAAPA. Whether the detenu had understood Ext.P1 order or to put it better, whether his contention that he had not understood the same is correct or not, has to be judged in the light of the absence of an earlier grievance when Ext.P8 was passed that he did not understand Ext.P1. 8. Be that as it may, the learned Government Pleader relies on the decision in Devji Vallabhbhai v. Administrator, Goa, Daman & Diu [AIR 1982 S.C 1029] to contend that even if the facts alleged were true, that cannot readily lead to inference of infraction of the constitutional right under Article 22(5) or the statutory right under Section 7(2) of the KAAPA. W.P(Crl) No.366 of 2010 6 9. In the instant case, it is not disputed that the grounds of detention which accompanied Ext.P1 was in the Malayalam language. Ext.P1 order of detention is virtually a repetition of the contents of Ext.P2 grounds of detention. An identical situation came up for consideration before the Supreme Court in Devji Vallabhbhai (supra). We extract the relevant portion in para.8 below: “para.8: .............................................................. ..................................................................................... ........................................ ............................................................................. .......................................... So far as the non-supply of the Gujarati version of the ORDER as per Annexure 'A' is concerned, in our opinion, there has been no violation of Article 22 (5) or any other law. The ORDER as per Annexure 'A' was a mere formal recital of S.3(1) of the COFEPOSA, showing the provision of law under which the order of detention has been made. Although, the section of the COFEPOSA has not been mentioned in these circumstances, he last but two photographs of the “grounds”, it has been stated that the detenu engaged him self “in smugging goods and that there is sufficient cause to pass detention order against you with a view to preventing you from smuggling goods”, which was in Gujarati. It cannot, therefore, be said that the detenu was in any way handicapped in submitting his representation, or there has been any violation of Article 22(5) of the Constitution. W.P(Crl) No.366 of 2010 7 10. In the instant case Ext.P1 is virtually only an English translation of the grounds. The grounds have been furnished in the Malayalam language and there is no grievance regarding the furnishing of the grounds of detention. We are of the opinion that the observation of the Supreme Court in para.8 of the decision in Devji Vallabhbhai (supra) squarely cover the situation and the challenge raised on ground No.(i) must, in these circumstances, fail. 11. Ground No.(ii) The learned counsel for the petitioner has chosen to advance this ground though it is not specifically raised in the petition. Ext.R2(a) has been produced by the respondents and it is then that the learned counsel for the petitioner found this contention to be available to him. The gist of the contention is that Ext.R2(a) reveals that the detenu was located at Kuruppampady on 26.04.2010. He was arrested observing all the formalities prescribed by the Supreme Court. He was taken to Kuruppampady Police Station and there the order of detention, grounds of detention and the documents were made available to the detenu. The counsel relies on Section 7(1) of the KAAPA, which we extract below: W.P(Crl) No.366 of 2010 8 “7. Grounds of order of detention to be disclosed.-- (1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order. (emphasis supplied) 12. The counsel argues that furnishing of a copy of the order is mandatory when the arrest takes place. The counsel relies on Ext.R2(a) produced by the respondents to contend that, at any rate, that document reveals that the copy was furnished not at the place of arrest, but only after the detenu was taken to the Police Station after arrest. This, the counsel contends, amounts to violation of the provisions under Section 7(1) of the KAAPA. 13. There must inevitably be gaps of time in every case between arrest and reading over of the detention order and furnishing of a copy of the same. They must ideally be simultaneous, but a gap of time between the arrest and reading over and furnishing of a copy is inevitable. The question is whether the gap of time is such as to give rise to legitimate grievance of infraction of the provisions of Section 7(1) of the KAAPA. Arrest was admittedly in Kuruppampady. He was taken to the Kuruppampady Police Station and the documents were W.P(Crl) No.366 of 2010 9 furnished. We agree with the learned counsel for the petitioner that Ext.R2(a) reveals a distance in time and space between arrest and the furnishing of copies. But the crucial question is whether this gap of time is such as to warrant an inference of infringement of the provisions of Section 7(1) of the KAAPA and whether such infringement must lead to invalidation of the order and the continued detention. Such a contention, we note, has not even been raised by the petitioner. Indications available from Ext.R2(a), according to us, is certainly not such as to persuade the Court to draw a ready inference of fatal infraction of the provisions of Section 7(1) of the KAAPA. The challenge on that ground must also, in these circumstances, fail. 14. Ground No.(iii) It is thirdly contended that there has been delay in the consideration of Ext.P5 representation. Ext.P5 representation is dated 31.08.2010. Ext.P6 shows that the same after preparation was sent to the prison authorities by the counsel with request to get the signature of the detenu thereon and to forward the same to the Government. The respondents contend and the records reveal that the representation did ultimately reach the Government on 08.09.2010. The precise date on which the W.P(Crl) No.366 of 2010 10 prison authorities received it or they in turn forwarded the same to the Government, are not made available. But Ext.P6 shows that a counsel from Ernakulam forwarded it by post to the Superintendent of the Jail on 31.08.2010 and the file reveals that the Government received the same on 08.09.2010. In the absence of the specific date, we shall assume that the representation Ext.P5 must have reached the Government on some day between 31.08.2010 and 08.09.2010. Order was passed on that representation on 18.09.2010. The order was communicated to the detenu on 25.09.2010. 15. It will not be inapposite in this context to note that the said representation was filed after Ext.P8 order was passed on 16.07.2010. This Writ Petition was filed on 15.09.2010. The representation was disposed of after the date on which this Writ Petition was filed. We are unable to agree that Ext.P5 representation had not received the expeditious consideration which it is entitled to, true to the mandate of Article 22(5) of the Constitution. The challenge on the third ground also fails. 16. Ground No.(iv) The learned counsel for the petitioner builds up a very interesting argument under ground No.(iv). The learned counsel W.P(Crl) No.366 of 2010 11 contends that the right to make a representation under Article 22(5) of the Constitution is worded such that it does not specify the authority before whom the representation is to be made. The counsel relies on the decision in Gracy v. State of Kerala [AIR 1991 S.C 1090] to contend that the right to represent under Article 22(5) includes the right to make a representation before the Advisory Board. The counsel concedes that the language in which Article 22(4) is worded does not specifically concede any right of representation before the Advisory Board by the detenu. But the non specification of the authority to whom representation can be made under Article 22(5) read in the context of Article 22(4) and Sections 9 and 10 of the KAAPA, must necessarily include a right to make a representation to the Advisory Board also. We extract Article 22(5) of the Constitution below: “Article 22(5): 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.” (emphasis supplied) W.P(Crl) No.366 of 2010 12 17. The learned counsel for the petitioner further argues that even assuming that there is no right to make a representation before the Advisory Board under the provisions of the Constitution, under Section 7(2) of the KAAPA, such a right is clearly spelt out. We extract Section 7(2) of the KAAPA: “Section 7. Grounds of order of detention to be disclosed. (1) ....................................................................... .................................... (2) The grounds of detention, specifying the instances of offences, with copies of relevant documents, as far as practicable, on the basis of which he is considered as a “known goonda” or “known rowdy” and giving such materials relating to his activities on the basis of which his detention has been found necessary, shall be furnished to him as soon as possible, nevertheless, in any case, within five days of detention and he shall also be informed in writing, under acknowledgment, of his right to represent to the Government and before the Advisory Board against the arrest and detention.” (emphasis supplied) 18. The counsel further relies on the provisions of Sections 9 and 10(1) of the KAAPA also to contend that unmistakably there is a right to make a representation to the Advisory Board under the KAAPA also. We extract Sections 9 & 10(1) of the KAAPA below: W.P(Crl) No.366 of 2010 13 “Section 9: Reference to Advisory Board: In every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected, and, in the case where the order has been made by an authorised officer, the report of such officer under sub-section (3) of Section 3. Section 10. Procedure of Advisory Board and further action: (1) The Advisory Board to which the reference is made under the above section shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government, or from the person concerned and if, in any particular case, it considers necessary so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within nine weeks from the date of detention of the person concerned.” (emphasis supplied) 19. There is no dispute before us by the respondents that such a right exists in favour of the detenu. The detenu has a right to make a representation under Article 22(5) of the Constitution and that right includes the right to make a representation before the Advisory Board - more so, in the light W.P(Crl) No.366 of 2010 14 of the provisions of Sections 7(2), 9 and 10 of the KAAPA. We have no hesitation to agree with the learned counsel for the petitioner that the detenu has a right to make a representation before the Advisory Board also. 20. In this case, there is no contention that an opportunity to make a representation before the Advisory Board was not conceded to the detenu under Exts.P1 and P2. The language of Exts.P1 and P2 makes it clear that the detenu has the opportunity to make a representation before the Advisory Board also. 21. The learned counsel for the petitioner contends that the question is not whether an opportunity has been conceded or not. The learned counsel argues that the right to make a representation has not been conveyed effectively under Exts.P1/P2. Though it is mentioned that the detenu can make representation before the Advisory Board, specific communication of the existence of a right to make a representation has not been made in Exts.P1/P2. 22. We have gone through Exts.P1 and P2. It is true that it has not been specifically mentioned that there is a right to make a representation, but it has effectively been communicated W.P(Crl) No.366 of 2010 15 that a representation can be made before the Advisory Board also. There is difference in the semantics employed regarding the communication of the right to make a representation before the Government and the opportunity to make a representation before the Advisory Board. But this subtle distinction in semantics notwithstanding, there is effective communication of the information/fact that the detenu, if he wants, can make a representation to the Advisory Board. The difference in the language employed with respect to the right to make a representation before the Government and the opportunity to make a representation before the Advisory Board is not, according to us, such that it can lead to a conclusion that provisions of Section 7(2) of the KAAPA have been infringed on account of the failure to communicate the existence of a right to make a representation. We find no merit in the contention that the `right' of the detenu to make a representation before the Advisory Board has not been effectively communicated to him. 23. This is actually not the main contention of the learned counsel for the petitioner under this ground. The counsel argues that under the KAAPA, the Advisory Board considers or can consider the representation of the detenu only once and that is W.P(Crl) No.366 of 2010 16 along with the consideration of the reference made under Section 9 of the KAAPA. Such consideration is under Section 10 (1) of the KAAPA. Prior to such consideration or subsequent to such consideration, the Advisory Board has no jurisdiction to consider any such representation. There is only one opportunity for the detenu and there is only one occasion for the Advisory Board to exercise its powers - that is, under Section 10(1) of the KAAPA, when a reference is made under Section 9 of the KAAPA. According to the learned counsel for the petitioner, inasmuch as the detenu has only one opportunity to make a representation to the Advisory Board and the Advisory Board has got occasion only once to consider that representation, the detenu must have been communicated the time within which he should make such a representation. The counsel argues that the omission/failure to communicate to the detenu that his representation to the Advisory Board must be made, before the Advisory Board considers such representation along with the reference under Section 10(1) of the KAAPA, amounts to frustration of the right to make a representation before the Advisory Board. The learned counsel submits that as a matter of fact, there has been prejudice suffered by the detenu in this case on account of the W.P(Crl) No.366 of 2010 17 failure/omission to communicate the time within which the representation to the Advisory Board should be made. He did not actually make a representation, before the Advisory Board took up the matter for consideration under Section 10(1) of the KAAPA. Thereafter, there was no point in the detenu making a representation. In fact, the counsel contends that the omission to prescribe the time within which the representation to the Board must be made has in this case resulted in frustration of his right to make representation before the Board. This amounts to infringement of the Constitutional right under Article 22(5) and the statutory right under Section 7(2) of the KAAPA, contends the counsel. 24. We are in ready agreement with the learned counsel for the petitioner that the representation by the detenu can be considered by the Advisory Board only once. To the Government, representation can be made at any time. It can be before approval under Section 3(3), after approval under Section 3(3) of the KAAPA, before confirmation under Section 10(4) of the KAAPA, or after confirmation under Section 10(4) of the KAAPA. On any date before the period of detention expires, such W.P(Crl) No.366 of 2010 18 a representation can be made by the detenu and the same can be considered by the Government. 25. Not so in the case of a representation to the Advisory Board. It has to be submitted before the reference under Section 9 is taken up for consideration under Section 10(1) of the KAAPA. If he submits the representation thereafter, the detenu would have missed the bus. There is no point in making a representation, after opinion of the Board is rendered under Section 10 of the KAAPA. 26. It is hence that the learned counsel builds up an argument that the omission to mention the time has caused the detenu dear in this case. The continued detention must be invalidated for that sole reason, argues the learned counsel. 27. Both sides were requested to search and make submissions before the Court. The learned counsel for the petitioner places reliance on the decision of a Division Bench of the High Court of Allahabad in Jitendra v. Dist.Magistrate, Barabanki [2004 CRI.L.J 2967]. Reliance particularly is placed on paragraphs 5 to 10 of the said decision. That was a case of detention under the National Security Act. The contention raised related to the representation to the Detaining Authority, W.P(Crl) No.366 of 2010 19 before the Government accorded approval. Such approval had to be granted by the State Government within a period of 12 days. After the elapse of the period of 12 days, there was