Vilasini Ramachandran vs Union Of India

Vinod Chandran, J.

The mother of the detenu, detained as per Ext.P1 order dated 23.10.2020, is before this Court challenging the detention. He was arrested on

27.10.2020 and the order of approval at Ext.P3 was dated 10.11.2020, within the 12 days as provided under Section 3 of the Kerala Anti-Social

Activities (Prevention) Act, 2007 [for brevity ""KAA(P)A""], excluding Sundays. The matter was referred to the Advisory Board on 12.11.2020 and the

Advisory Board confirmed the order on 24.12.2020. Representations dated 02.01.2021, were filed by the detenu before the Advisory Board and the

Government which was received on 11.01.2021 by the Government and rejected on 18.01.2021. We have confirmed the above said dates as available

in the records produced by the learned Special Government Pleader Sri.K.A.Anas.

Sri.Renjith B. Marar, learned Counsel for the petitioner has raised a challenge against the KAA(P)A that it is in direct conflict with what has been

provided under Section 3 of the National Security Act and, hence, the Act passed by the State Legislature is unconstitutional on the ground of

repugnancy, being violative of Article 254 of the Constitution of India. The learned Counsel, on the facts of this case, took us through the provisions of

the KAA(P)A and pointed out that the last prejudicial act is not to be taken as 11.10.2020; but, 30.07.2020. The complaint on 11.10.2020 is by a Police

Officer and the same has to be excluded under Section 2(p)(iii), being a complaint initiated by a Police Officer. If the last prejudicial act is taken to be

30.07.2020, then the detention order has been passed after three months, which stands vitiated as has been held by this Court in Jimesh Jose v. State

of Kerala & Ors. [2013 (1) KHC 49] and Ponnappan N.N. v. State of Kerala & Ors. [2018 (5) KHC 210]. It is then submitted that the representation

made by the mother to the Advisory Board has not been considered. It is pointed out that if at all, as discernible from the files, the Advisory Board has

confirmed the order on 24.12.2020, which date was not earlier known to the petitioner or the detenu; even then the representation had to be sent to the

Government for its consideration. Thankam v. State of Kerala [2018 KHC 818] and Saraswathy v. State of Kerala & Anr. [2012 (1) KHC 432]

are relied on.

Sri.K.A.Anas, learned Government Pleader, would, on the other hand, argue that KAP(P)A was enacted under Entry 3 of List III and the National

Security Act deals with the security of the Nation while KAA(P)A deals with maintenance of public order. There is no question of repugnancy in the

State having legislated KAA(P)A for the maintenance of public order, for which there is no Central legislation as of now. Reliance is also placed on

A.K. Roy v. Union of India & Anr. [(1982) 1 SCC 272 = 1982 KHC 395] I.t is pointed out on behalf of the State that the detenu had been under

preventive detention earlier also, the challenge against which was dismissed by this Court. The detenu, after release, was involved in five crimes,

shown at Sl.Nos.6 to 10 in Ext.P1 order. It is pointed out that the latest crime dated 11.10.2020 though initiated by the Police Officers; was initiated in

their personal capacity for having threatened them and attacked with lethal weapons as also causing interference to their official duties when they

were in the process of arresting one another criminal. Such complaints registered by Police Officers would not be excluded under Section 2(p)(iii) as

has been held in Joicy v. State of Kerala [2018 (1) KHC 37 (DB)].F urther, it is pointed out that on the basis of the crime registered on 12.07.2020

(Sl.No.9), there was a proceeding initiated by the Sponsoring Authority dated 08.09.2020. It was when the said report was under consideration that

the subsequent crime was noticed and the Sponsoring Authority again made a report on that basis on 17.10.2020. It is argued that the representation

before the Advisory Board was subsequent to its approval. Representations were made to the Advisory Board and the Government on the same day,

and the Government had considered the same and rejected it. The cited decisions are with respect to instances where representations were made

either to the Government or the Advisory Board and not both. It is urged that there is no ground to interfere with the detention order.

We do not find any reason to consider the challenge raised against KAA(P)A since there can be no repugnancy found and the legislation referred

to are enacted by the Union Parliament and the State Legislature on two different aspects contained in Entry 3 of List III of the 7th Schedule to the

Constitution of India. There is no legislation by the Union Parliament on matters dealt with in KAA(P)A. The broader question of preventive detention

interfering with the civil liberties; the ground has been found to be specious in the Constitution Bench decision in A.K Roy. We reject the said

challenge without much ado.

The detenu was earlier detained as per order dated 23.07.2017 pursuant to which he was arrested on 27.07.2017. The mother of the detenu, the

petitioner herein, had filed a writ petition, numbered W.P(Crl).405 of 2017, which stood rejected by this Court on 19.01.2018. The detenu was released

on expiry of the detention period on 26.01.2018. It is later to his release, that five crimes were registered in the Kuruppumpady Police Station, Crime

No.1149 of 2018 (25.09.2018), Crime No.1444/2018 (21.12.2018), Crime No.177/2019 (15.02.2019), Crime No.866/2020 (12.07.2020) and Crime

No.1050/2020 (11.10.2020). The offences alleged come under those specifically referred to in Section 2(p) of KAA(P)A. The last of such offences

alleged arose from an incident when the Sub Inspector and his team attempted to arrest the 2nd accused in Crime No.866 of 2020. The detenu along

with five others attacked the police officers with lethal weapons causing threats to their very lives, based on which the crime was registered.

In Joicy, the main ground of challenge against the order under KAA(P)A was inclusion of cases where Police Officers were complainants, to bring

the detenu within the sweep of the definition of 'known rowdy'. Therein also the complainants were Assistant Sub Inspectors of Police who sustained

injuries in the attack by the detenu. It was held by the Division Bench that Police Officers are also human beings and individuals. If such Law

enforcement Officers, who are in a better position than an ordinary citizen to thwart any attempts on their body and limbs, are themselves subjected to

attacks, then the threat caused to an ordinary citizen by such anti-socials can only be imagined. It is not an acceptable preposition that when police

officers are assaulted any number of times, there could be no proceedings taken under KAA(P)A going by Section 2(p) (iii). The provision is intended

to curb the misuse of power by Police Officers and to safeguard the interest of the detenu. As in the cited decision, here too, the detenu is a person

who has been habitually indulging in crimes, that too causing threat, fear, nuisance and disturbance to the society at large. The last prejudicial act

alleged against the detenu is also one of obstructing the arrest of the accused in a case. Such obstruction was caused in the company of five others

with lethal weapons and attacking the police officers raising a threat to their very lives. The circumstances being so, going by the binding precedent,

which we respectfully agree with, we reject the said contention.

As to the consideration of the representation, we see from the files that the representation made by the mother was received by the Government on

11.01.2021 and considered and rejected by the Government on 20.01.2021. The above order was also communicated to the petitioner. The

representations are seen at Exts.P4 and P5 and raise the very same contentions; verbatim identical. Thankam and Saraswathy were cases in which

the representation was addressed only to one authority, which had to be forwarded to the other authority. The binding precedent, as we see, is that if a

representation is addressed to the Government alone, before the Advisory Board enters on a finding the same has to be forwarded to the Advisory

Board for consideration. Even if the Advisory Board confirms the order after consideration of the representation also; the Government would still be

obliged to consider that representation even if the Government agrees with the opinion of the Advisory Board. Likewise if a representation is made to

the Advisory Board and the Advisory Board after consideration confirms the order of detention, then the representation has to be forwarded to the

Government for independent consideration. In the present case, representations were made to both the Advisory Board and the Government. Even

before the date of representation, the Advisory Board confirmed the order of detention. The Government, however, despite confirming the order of

detention, considered the representation and rejected it, without any delay. We cannot draw a parallel to the facts considered by two different Division

Benches in the cited decisions.

Our conclusion is that there is no scope for interference with the order of detention as confirmed by the Advisory Board and the Government. We

reject the writ petition.