TaxTMI 
TaxTMI 
2016 (1) TMI 1474
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....ake a representation either to the Government or to the Advisory Board. Dini Babu, the son of the petitioner, was detained under S. 3(1) of the KAAPA as per Ext. P1 order of detention dated 22.8.2015 passed by the District Magistrate, Thiruvananthapuram. Dini Babu was arrested on 27.8.2015. The order of detention was confirmed on 28.10.2015. 2. In Ext. P2 grounds of detention it is stated as follows: It is submitted by the learned counsel for the petitioner that the detenu submitted a representation before the Advisory Board and he did not make a representation to the Government as he was misled by the statement in Ext. P2 that he could only elect either of the authorities for the purpose of making a representation. It is submitted that the mandatory requirement of Section 7 of the KAAPA was violated and, therefore, the detenu is liable to be set at liberty forthwith. The learned counsel submitted that the dual right of the detenu to make a representation to 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 ....
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.... be made. In Kamleshkumar Ishwardas Patel's case, the Additional Solicitor General stressed on the word 'a' in singular in Article 22(5) of the Constitution and contended that it indicates that only one representation is to be made and it has to be made to the Advisory Board. The Constitution Bench did not agree with that contention and to give a restricted meaning to the words "making a representation against the order" in Article 22(5) which is in the nature of a fundamental right affording protection to the person detained. The Constitution Bench held thus: "7. ...As stated earlier, the object underlying the right to make a representation that is envisaged by Article 22(5) is to enable the person detained to obtain immediate relief. If the construction placed by the learned Additional Solicitor General is accepted relief may not be available to the detenu till the matter is considered by the Advisory Board and that would depend upon the time taken by the appropriate 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....
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....A. v. State of Kerala & Ors. 2015 (4) KLTSN 45 (C. No. 52) : ILR 2015 (4) Ker 18), held thus: "73. In view of the above discussion, we hold that the responsibility or the burden cast upon the detaining authority, under Article 22(5) of the Constitution and S. 7(2) of the KAAPA, while passing orders for detaining "known goondas" or "known rowdies" under S. 3 of the Act, will stand discharged by affording an earliest opportunity to make a representation and communication of the availability of such opportunity/right to represent to the Government and before the Advisory Board against his detention. The detaining authority is not bound, as per the scheme of Act 34 of 2007, to inform the detenu of his right to represent before the detaining authority himself, as there exist no such right...." 8. The learned Additional Director General of Prosecution relied on a Three Judge Bench of the Supreme Court in R. Keshava v. M.B. Prakash & Ors. (2001) 2 SCC 145 : 2001 KHC 1710 and submitted that the detenu having 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 quest....
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....visory Board to consider the representation at the time of hearing the references. The consideration by the Advisory 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 of the Constitution of India and it is independent of the consideration of the detenu's representation by the Advisory Board under Clause (4) of Article 22 read with S. 10(1) of the KAAPA. Rejection of the representation by the Advisory Board while giving its opinion under S. 10(1) of the KAAPA is not a final opinion in the matter. I n spite of the opinion by the Advisory Board that there are sufficient cause for the detention of the person concerned, the Government may, at any time, revoke the order of detention under S. 13 of the KAAPA. A representation submitted by the detenu to the Government could favourably be considered by the Government even after the opinion of the Advisory Board 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 deten....