Aswathi G R vs State Of Kerala & Ors.

“12.

Faced with this difficulty, counsel on behalf of the respondent conceded that in a case where the detention is for a period of less than three months or in a case contemplated by Article 22(7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the representation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22(5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenues. It is manifest that the right under Article 22(5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate government is under legal obligation to consider the representation of the detenu before such a reference is made.

13.

In the present case, Sk. Abdul Karim has alleged that his representation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counteraffidavit filed on behalf of the respondent. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered illegal. Accordingly, the order of detention, dated 17.02.1968, made against Petitioner 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal, dated 24^th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and Petitioner 2, Sk. Abdul Karim was entitled to be released.” (Underline supplied)

“20.

Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible. Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to the measure of time taken by the appropriate authority for consideration, but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizen's right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenu's representation to the Advisory Board. If the appropriate Government will release the detenu the Government will not send the matter to the Advisory Board. If however the Government will not release the detenu the Government will send the case along with the detenu's representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the Advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.” (Underline supplied)

“29.

Principles of natural justice are an element in considering the reasonableness of a restriction where Article 19 is applicable. At the stage of consideration of representation by the State Government, the obligation of the State Government is such as Article 22(5) implies. Section 8 of the Act is in complete conformity with Article 22(5) because this section follows the provisions of the Constitution. If the representation of the detenu is received before the matter is referred to the Advisory Board, the detaining authority considers the representation. If a representation is made after the matter has been referred to the Advisory Board, the detaining authority will consider it before it will send representation to the Advisory Board.” (Underline supplied)

“7.

The law is well-settled that in case of preventive detention of a citizen, the obligation of the appropriate government is two-fold: (i) to afford the detenu the opportunity to make a representation and to consider the representation which may result in the release of the detenu, and (ii) to constitute a Board and to communicate the representation of the detenu along with other materials to the Board to enable it to form its opinion and to obtain such opinion. The former is distinct from the latter. As there is a two-fold obligation of the appropriate government, so there is a two-fold right in favour of the detenu to have his representation considered by the appropriate government and to have the representation once again considered by the Government in the light of the circumstances of the case considered by the Board for the purpose of giving its opinion. See: Narendra Purshotam Umrao v. B.B. Gujral [(1979) 2 SCC 637] and Pankaj Kumar Chakrabarty v. State of West Bengal [(1969) 3 SCC 400]” (Underline supplied)

“19.

The next submission is that of non-supply of the bail application and the bail order. This Court, as was observed in Mangalbhai Motiram Patel v. State of Maharashtra, [1981 (1) SCR 852], has 'forged' certain procedural safeguards for citizens under preventive detention. The Constitutional imperatives in Article 22(5) are two fold: (a) The detaining authority must, as soon as may be i.e., as soon as practicable, after the detention communicate to the detenu the grounds on which the order of detention has been made, and (2) the detaining authority must afford the detenu the earliest opportunity of making the representation against the order of detention. The right is to make an effective representation and when some documents are referred to or relied on in the grounds of detention, without copies of such documents, the grounds of detention would not be complete. The detenu has, therefore, the right to be furnished with the grounds of detention along with the documents so referred to or relied on. If there is failure or even delay in furnishing those documents it would amount to denial of the right to make an effective representation. This has been settled by a long line of decisions: Ramachandra A. Kamat v. Union of India, [1980 (2) SCR 1072]; Frances Coralie Mullin v. W.C. Kharnbra and others [1980 (2) SCR 1095]; Smt. Ichhu Devi Chararia v. Union of India [1981 SCR 640]; Pritam Nath Hoon v. Union of India [1981 (1) SCR 682]; Shri Tushar Thakkar v. Union of India [(1980) 4 SCC 499]; Lallubhai Jogibhai Patel v. Union of India [(1981) 2 SCC 427]; Kirit Kumar Chaman Lal Kundaliya v. Union of India [(1981) 2 SCC 436] and Smt. Ana Carelina D'Souza v. Union of India [(1981) Suppl. SCC 53].

20.

It is immaterial whether the detenu already knew about their contents or not. In Mehrunissa v. State of Maharashtra, [(1981) 2 SCC 709], it was held that the fact that the detenu was aware of the contents of the documents not furnished was immaterial and non-furnishing of the copy of the seizure list was held to be fatal. To appreciate this point one has to bear in mind that the detenu is in jail and has no access to his own documents. In Mohd. Zakir v. Delhi Administration [(1982) 3 SCC 216] it was reiterated that it being a Constitutional imperative for the detaining authority to give the documents relied on and referred to in the order of detention pari passu the grounds of detention, those should be furnished at the earliest so that the detenu could make an effective representation immediately instead of waiting for the documents to be supplied with. The question of demanding the documents was wholly irrelevant and the infirmity in that regard was violative of Constitutional safeguards enshrined in Article 22(5).

21.

It is also imperative that if the detenu was already in jail the grounds of detention are to show the awareness of that fact on the part of the detaining authority, otherwise there would be non-application of mind and detention order vitiated thereby. In the instant case though the order of detention ex facie did not mention of the detenu having been in jail, in paragraph 3 of the grounds of detention it was said that he was arrested by the Superintendent (Intelligence) Air Customs, Trivandrum on 31.01.1988 and he was produced before the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam the same day. It was clearly said: "You were remanded to judicial custody and you were subsequently released on bail," From the Records it appears that the bail application and the bail order were furnished to the detaining authority on his enquiry. It cannot, therefore, be said that the detaining authority did not consider or rely on them. It is difficult, therefore, to accept the submission of Mr. Kunhikannan that those were not relied on by the detaining authority. The bail application contained the grounds for bail including that he had been falsely implicated as an accused in the case at the instance of persons who were inimically disposed towards him, and the bail order contained the conditions subject to which the bail was granted including that the accused, if released on bail, would report to the Superintendent (Intelligence) Air Customs, Trivandrum on every Wednesday until further order, and that he will not change his residence without prior permission of court to 25.02.1988. This being the position in law, and non-supply of the bail application and the bail order having been apparent, the legal consequence is bound to follow”.

“4.

On the above facts, the question is: Whether there has been any infraction of the guarantee under Article 22(5) of the Constitution as a result of Central Government's omission to consider the detenus representation independent of its consideration by the Advisory Board? The Central Government's stand is that the detenu's representation being addressed to the Advisory Board to which it was submitted during pendency of the reference before the Advisory Board, there was no obligation on the Central Government also to consider the same independently since the representation was not addressed to the Central Government.

5.

The constitutional mandate in Article 22(5) was considered recently by a Constitution Bench in K. M. Abdulla Kunhi and B. L. Abdul Khader v. Union of India, State of Karnataka (JT 1991 (1) SC 216: 1991 AIR SCW 362), in view of some conflict in earlier decisions of this Court regarding the detaining authority's obligation to consider the detenu's representation independently of the Advisory Board's duty in this behalf. The Constitution Bench held as follows: (SCC pp. 483-484, para 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 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 consider the representation at the time of hearing the references. The Government considers the representation to ascertain essentially whether the order is in conformity with the power under the law. The Board, on the other hand, considers the representation and the case of the detenu to examine whether there is sufficient cause for detention. The consideration by the Board is an additional safeguard and not a substitute for consideration of the representation by the Government. The right to have the representation considered by the Government is safeguarded by Clause (5) of Article 22 and it is independent of the consideration of the detenus case and his representation by the Advisory Board under Clause (4) of Article 22 read with Section 8(c) of the Act. See: Sk. Abdul Karim v. State of West Bengal [(1969) 1 SCC 433]; Pankaj Kumar Chakrabarty v. State of West Bengal [1970 (1) SCR 543]; Shayamal Chakraborty v. Commissioner of Police, Calcutta [(1969) 2 SCC 426]; B. Sundar Rao v. State of Orissa [(1972) 3 SCC 11]; John Martin v. State of West Bengal [1975 (3) SCR 211]; S.K. Sekawat v. State of West Bengal, [1975 (2) SCR 161] and Haradhan Saha v. State of West Bengal, [1975 (1) SCR 778]."

6.

It is thus clear that the obligation of the Government to consider the representation is different and in addition to the obligation of the Board to consider it at the time of hearing the reference before giving its opinion to the Government. Consideration of the representation by the Government has to be uninfluenced by the view of the Advisory Board. In short, the detenu's right to have the representation considered by the Government under Article 22(5) is independent of the consideration of the detenus case and his representation by the Advisory Board. This position in law is also not disputed before us.

9.

It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from Article 22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Article 22(5) in support of the contention of the learned Solicitor General. The contents of Article 22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Article 22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form which cannot whittle down the requirement of the constitutional mandate in Article 22(5) enacted as one of the safeguards provided to the detenu in case of preventive detention.”

“7.

It is a constitutional obligation of the Government to consider the representation forwarded by the detenu without any delay. Though no period is prescribed by Article 22 of the Constitution for the decision to be taken on the representation, the words “as soon as may be” in clause (5) of Article 22 convey the message that the representation should be considered and disposed of at the earliest. But that does not mean that the authority is pre-empted from explaining any delay which would have occasioned in the disposal of the representation. The court can certainly consider whether the delay was occasioned due to permissible reasons or unavoidable causes. This position has been well delineated by a Constitution Bench of this Court in K.M. Abdulla Kunhi v. Union of India [(1991) 1 SCC 476]. The following observations of the Bench can profitably be extracted here:

“It is a constitutional mandate commanding the authority concerned to whom the detenu submits his representation to consider the representation and dispose of the same as expeditiously as possible. The words ‘as soon as may be’ occurring in clause (5) of Article 22 reflects the concern of the Framers that the representation should be expeditiously considered and disposed of with a sense of urgency without an avoidable delay. However, there can be no hard and fast rule in this regard. It depends upon the facts and circumstances of each case. There is no period prescribed either under the Constitution or under the detention law concerned, within which the representation should be dealt with. The requirement, however, is that there should not be supine indifference, slackness or callous attitude in considering the representation. Any unexplained delay in the disposal of representation would be a breach of the constitutional imperative and it would render the continued detention impermissible and illegal.”

8.

The position, therefore, now is that if delay was caused on account of any indifference or lapse in considering the representation, such delay will adversely affect further detention of the prisoner. In other words, it is for the authority concerned to explain the delay, if any, in disposing of the representation. It is not enough to say that the delay was very short. Even longer delay can as well be explained. So the test is not the duration or range of delay, but how it is explained by the authority concerned.

9.

What happened in this case was that the Government which received remarks from different authorities submitted the relevant files before the Under-Secretary for processing it on the next day. The Under-Secretary forwarded it to the Deputy Secretary on the next working day. Thus there is some explanation for the delay till 09.02.1998. Thereafter the file was submitted before the Minister who received it while he was on tour. The Minister passed the order only on 14.02.1998. Though there is explanation for the delay till 09.02.1998, we are unable to find out any explanation whatsoever as for the delay which occurred thereafter. Merely stating that the Minister was on tour and hence he could pass orders only on 14.02.1998 is not a justifiable explanation when the liberty of a citizen guaranteed under Article 21 of the Constitution is involved. Absence of the Minister at the Headquarters is not sufficient to justify the delay, since the file could be reached the Minister with utmost promptitude in cases involving the vitally important fundamental right of a citizen.” (Underline supplied)

“46.

There is absolutely no reasonable basis for explaining the circumstances in which the representation dated 18.05.2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15.06.2021. As we have indicated on the basis of the precedents of this Court, the consideration of the representation by the State Government is qualitatively different from the reference to the Advisory Board. This Court, in Ankit Ashok Jalan v. Union of India [(2020) 16 SCC 127] had held that the State Government is not bound to wait on the Advisory Board's report before deciding the representation and must do so, as expeditiously as possible. In spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15.06.2021, the State Government took another one month in arriving at a decision on the appellant's representation dated 18.05.2021. The State Government did not furnish any valid reasons for either of the two courses of action.” (Underline supplied)

“21.

There is a dual obligation on the appropriate Government and a dual right in favour of the detenu, namely, (1) to have his representation irrespective of the length of detention considered by the appropriate Government and (2) to have once again that representation in the light of the circumstances of the case considered by the Board before it gives its opinion. If in the light of that representation the Board finds that there is no sufficient cause for detention the Government has to revoke the order of detention and set at liberty the detenu. Thus, whereas the Government considers the representation to ascertain whether the order is in conformity with its power under the relevant law, the Board considers such representation from the point of view of arriving at its opinion whether there is sufficient cause for detention. The obligation of the appropriate Government to afford to the detenu the opportunity to make a representation and to consider that representation is distinct from the Government's obligation to constitute a Board and to communicate the representation amongst other materials to the Board to enable it to form its opinion and to obtain such opinion. See: Paragraph 10 of the decision in Pankaj Kumar Chakrabarty v. State of West Bengal [(1969) 3 SCC 400].

22.

In brief, there is a constitutional obligation on the State to consider the representations of detainees, irrespective of whether such representation was made before or after the reference is made to the Advisory Board and in any event, such representation cannot be kept pending till the Advisory Board decides the matter

23.

The detention order thus cannot be sustained in absence of any explanation offered by the State for not considering the said representation made simultaneously, but not considered separately and only after the Advisory Board forwarded its recommendation. It is quite evident that the Government was awaiting the report of the Advisory Board.” (Underline supplied)

“32.

Likewise, in the present case, we are not concerned as to whether the conditions imposed by the Magistrate would have taken care of the apprehension expressed by the detaining authority; of the detenu indulging in further smuggling activities. We are more concerned with the aspect that the detaining authority did not consider the efficacy of the conditions and enter any satisfaction, however subjective it is, as to the conditions not being sufficient to restrain the detenu from indulging in such activities.

33.

Ameena Begum v. State of Telangana [(2023) 9 SCC 587], noticed with approval Vijay Narain Singh v. State of Bihar [(1984) 3 SCC 14] and extracted para 32 from the same Vijay Narain Singh [(1984) 3 SCC 14]: (SCC pp. 35-36)

“32.

… It is well settled that the law of preventive detention is a hard law and therefore it should be strictly construed. Care should be taken that the liberty of a person is not jeopardised unless his case falls squarely within … not be used merely to clip the wings of an accused who is involved in a criminal prosecution. It is not intended for the purpose of keeping a man under detention when under ordinary criminal law it may not be possible to resist the issue of orders of bail, unless the material available is such as would satisfy the requirements of the legal provisions authorising such detention. When a person is enlarged on bail by a competent criminal court, great caution should be exercised in scrutinising the validity of an order of preventive detention which is based on the very same charge which is to be tried by the criminal court.” (Emphasis supplied)

34.

The criminal prosecution launched and the preventive detention ordered are on the very same allegations of organised smuggling activities, through a network set-up, revealed on successive raids carried on at various locations, on specific information received, leading to recovery of huge cache of contraband. When bail was granted by the jurisdictional court, that too on conditions, the detaining authority ought to have examined whether they were sufficient to curb the evil of further indulgence in identical activities; which is the very basis of the preventive detention ordered.” (Underline supplied)

“58.

In the instant case, though Ext.P1 order of detention states that the detaining authority considered the bail order and found that the bail conditions are not sufficient to deter the detenue from repeating criminal activities, the conditions imposed by the competent court while granting bail to the detenue are not even extracted or stated in Ext.P1 order of detention. Therefore, the mere statement made in Ext.P1 order of detention that the bail conditions are not sufficient to deter the detenue from repeating criminal activities, is not at all sufficient to import subjective satisfaction of the detaining authority on the above aspect, before an order of preventive detention can be made under Section 3(2) of the KAA (P) Act. In that view of the matter, the conclusion is irresistible that Ext.P1 order of preventive detention is one passed by the detaining authority without considering the efficacy of the bail conditions, and without entering any subjective satisfaction as to the bail conditions not being sufficient to restrain the detenue from indulging in anti - social activities. On that sole ground, Ext.P1 order of preventive detention cannot be sustained in law”.

(Underline supplied)

21.

In the instant case, by Ext.P3 order dated 01.06.2026,

“33.

The crucial issue is whether the activities of the detenu were prejudicial to public order. While the expression 'law and order' is wider in scope inasmuch as contravention of law always affects order, 'Public order' has a narrower ambit, and could be affected by only such contravention, which affects the community or the public at large. Public order is the even tempo of life of the community taking the country as a whole or even a specified locality. The distinction between the areas of 'law and order' and 'public order' is one of degree and extent of the reach, of the act in question on society. It is the potentiality of the act to disturb the even tempo of life of the community which makes it prejudicial to the maintenance of the public order. If a contravention in its effect is confined only to a few individuals directly involved as distinct from a wide spectrum of public, it could raise problem of law and order only. In other words, the true distinction between the areas of law and order and public order lies not merely in the nature or quality of the act, but in the degree and extent of its reach upon society. Acts similar in nature, but committed in different contexts and circumstances, might cause different reactions. In one case it might affect specific individuals only, and therefore touches the problem of law and order only, while in another it might affect public order. The act by itself, therefore, is not determinant of its own gravity. In its quality it may not differ from other similar acts, but in its potentiality, that is, in its impact on society, it may be very different. [See: Union of India v. Amrit Lal Manchanda [(2004) 3 SCC 75]”

23.

In Dhanya M. [2025 (4) KHC 637], the Apex Court,

“9.

It is well settled that the provision for preventive detention is an extraordinary power in the hands of the State that must be used sparingly. It curtails the liberty of an individual in anticipation of the commission of further offence(s), and therefore, must not be used in the ordinary course of nature. The power of preventive detention finds recognition in the Constitution itself, under Article 22(3)(b). However, this Court has emphasized in Rekha v. State of Tamil Nadu [(2011) 5 SCC 244] that the power of preventive detention is an exception to Article 21 and, therefore, must be applied as such, as an exception to the main rule and only in rare cases.

10.

The above position was succinctly summarized by this Court, recently in Mortuza Hussain Choudhary v. State of Nagaland and others [2025 SCC OnLine SC 502], as follows:

"2.

Preventive detention is a draconian measure whereby a person who has not been tried and convicted under a penal law can be detained and confined for a determinate period of time so as to curtail that person's anticipated criminal activities. This extreme mechanism is, however, sanctioned by Article 22(3)(b) of the Constitution of India. Significantly, Article 22 also provides stringent norms to be adhered to while effecting preventive detention. Further, Article 22 speaks of the Parliament making law prescribing the conditions and modalities relating to preventive detention. The Act of 1988 is one such law which was promulgated by the Parliament authorizing preventive detention so as to curb illicit trafficking of narcotic drugs and psychotropic substances. Needless to state, as preventive deprives a person of his/her individual liberties by detaining him/her for a length of time without being tried and convicted of a criminal offence, the prescribed safeguards must be strictly observed to ensure due compliance with constitutional and statutory norms and requirements." (Emphasis supplied) xxxx xxxx xxxx 17. From perusal of Section 2(j), it is evident that a person who indulges in activities "harmful to maintenance of public order" is sought to be covered by the Act. This Court in SK. Nazneen v. State of Telangana [(2023) 9 SCC 633] had emphasized on the distinction between public order as also law and order situations

"18.

In two recent decisions Banka Sneha Sheela v. State of Telangana [(2021) 9 SCC 415]; Mallada K. Sri Ram v. State of Telangana [(2023) 13 SCC 537], this Court had set aside the detention orders which were passed, under the same Act i.e., the present Telangana Act, primarily relying upon the decision in Ram Manohar Lohia v. State of Bihar, [1965 SCC OnLine SC 9] and holding that the detention orders were not justified as it was dealing with a law and order situation and not a public order situation." (Emphasis supplied)

“16.

KAAPA is enacted to prevent as well to have effective control over, anti-social activities of persons indulged in such activities, to protect the community or the public at large free from threat or danger by the unruly behaviour of those persons. Quarrel, fight, clash or assault between people for some reason or other, are quite common in a society though a major group of people wish to live in harmony and peace. Still issues are there and cases are being registered by police though their prime duty is to prevent such instances. When anti-social activities are caused by a person repeatedly which seriously cause disturbance, threat, feeling of insecurity, danger etc. to a society at large or to the people of the locality, Section 3 of KAAPA gives power to the detaining authority to pass an order to prevent it. The words employed in the relevant provision 'it is necessary so to do' contemplates objective and subjective satisfaction of the detaining authority to pass such stringent orders curtailing the freedom of an individual to a certain extent, for the society at large. As the prime intention of the Act is to prevent or control anti - social activities by such persons who fall within the sweep of 'Known goonda' or 'Known rowdy', for the safety of the public, the detaining authority is vested with power to take tough and stringent decisions giving prime importance to the welfare of society than the private right of an individual by putting him behind the bar without trial as a preventive measure for the period stipulated in the Act. As preventive order is passed on suspicion, the criminal antecedents of the person affecting public order or disturbing the community, enable the detaining authority to arrive at subjective satisfaction. In Crime No. 1040 of 2013, the victim is even a minor and the allegation is that the detenu has attempted to murder him along with the co-indictees as he opposed peddling of narcotic items and drugs by the detenu in his locality. The subjective satisfaction of the detaining authority that the detenu is dangerous to the life of the community as a whole, is clearly discernible from the order, based on his past conduct and incidents involved by him. In Ext.P1 all the cases have been narrated in detail and details of the cases were forwarded as Exts.P4 to P8 along with Ext.P2 report of the sponsoring authority. It is revealed that the detenu is indulged in prejudicial acts for a long time and as he has become a threat to the society, the sponsoring authority recommended preventive detention and the detaining authority on subjective satisfaction so as to safeguard the interests of the Society passed the order. The argument of the learned Counsel for the detenu that Ext.P1 is not supported by valid grounds cannot be accepted as the details of all the cases in which the detenu had involved are narrated in detail and it was considered after meticulous evaluation. It is further argued that the order is vitiated as all the documents relied on by the authority to pass the order were not furnished to him and there is non-compliance of Section 7 of KAAPA.

(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.

(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 acknowledgement, of his right to represent to the Government and before the Advisory Board against his detention".

"4)

The order of detention shall not be deemed to be invalid merely because one or more of the facts or circumstances cited among the grounds are vague, non - existent, irrelevant or invalid for any reason whatsoever and such order shall be deemed to have been made by the Government or the Authorised officer after having been satisfied about the need for detention with reference to the remaining facts and circumstances, provided that the minimum conditions for being classified as a known goonda or known rowdy are satisfied."

“28.

In this context, counsel also contended that documents in relation to Section 107 CrPC proceedings were also relied on in Ext. P1 order and that it was not served on the detenu. In Ext. P1 order what is stated by the detaining authority is that though Section 107 proceedings have been initiated against the detenu on 18.07.2010 and are pending before Sub Divisional Magistrate, Kollam, there has not been any progress in the matter and it was therefore that he was satisfied that in spite of the above, the detenu should be detained under the Act. This therefore means that the detaining authority did not rely on Section 107 CrPC proceedings and only if the detaining authority had relied on such proceedings, detaining authority would have been obliged to supply the documents in relation thereto to the detenu in compliance with the principles laid down by the Apex Court in the judgment referred to above. Further, if the document in relation to Crime No. 1098 of 2010 was of any advantage to the detenu and if he wanted to rely on the same, it was for him to have made a request to the detaining authority or the Government to supply him those documents, which also was not done. Therefore, we are not prepared to accept the case of the petitioner on this count also.”

“22.

Thus, the legal position has been settled by this Court that the right to make representation is a fundamental right of the detenu under Article 22(5) of the Constitution and supply of the illegible copy of documents which has been relied upon by the detaining authority indeed has deprived him in making an effective representation and denial thereof will hold the order of detention illegal and not in accordance with the procedure contemplated under law.”

“33.

In light of the abovementioned discussions, it can be seen that both, the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground. We therefore hold Issue II in favour of the respondent.

Issue III — Whether the illegible documents written in Chinese submitted to the appellant herein are grounds enough for quashing the impugned detention order?

34.

In cases where illegible documents have been supplied to the detenue, a grave prejudice is caused to the detenue in availing his right to send a representation to the relevant authorities, because the detenue, while submitting his representation, does not have clarity on the grounds of his or her detention. In such a circumstance, the relief under Article 22(5) of the Constitution of India and the relevant statutory provisions allowing for submitting a representation are vitiated, since no man can defend himself against an unknown threat.

35.

In Harikisan v. State of Maharashtra [1962 SCC OnLine SC 117], this Court held that in cases of preventive detention, as per the principles enshrined under Article 22(5) of the Constitution of India, the detaining authority must explain the grounds of detention to the detenue, and must provide the material in support of the same and in the language understood by the detenue. The relevant paragraph of the said judgment is being reproduced herein:

“…The grounds in support of the order served on the appellant ran into fourteen typed pages and referred to his activities over a period of thirteen years, beside referring to a large number of court proceedings concerning him and other persons who were alleged to be his associates. Mere oral explanation of a complicated order of the nature made against the appellant without supplying him the translation in script and language which he understood would, in our judgment, amount to denial of the right of being communicated the grounds and of being afforded the opportunity of making a representation against the order…”

36.

In the present case at hand, the appellant - detenue, availing his rights sent a representation to both, the specially empowered officer and the Government. The detaining authority in the present case decided on the representation expeditiously and without waiting for the decision of the Advisory Board, and hence, did not violate the Pankaj Kumar Judgment (supra).

37.

The Government in the present case at hand, did decide to wait for the decision of the Advisory Board. This was also done in accordance with the decision of the Abdullah Kunhi case (supra), since the Government, being a separate authority, is bound to wait for the decision of the Advisory Board.

38.

In light of the abovementioned discussions, it can be seen that both, the detaining authority, and the Government, have worked precisely within the procedure established by law, and hence the impugned detention order is not liable to be struck down on this ground. We therefore hold Issue II in favour of the respondent.”