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2009 DIGILAW 421 (KER)

Vilasini Manikandan v. State of Kerala

2009-06-03

M.C.HARI RANI, R.BASANT

body2009
Judgment :- Basant, J. (a) Who has the right to make the representation under Article 22(5) of the Constitution of India and Section 7(2) of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as KAAPA)? Can non-consideration or improper consideration of an application independably made by anyone other than the detenu justify a prayer for invalidation of the detention'? (b) To whom is such a representation to be made? When such a representation is made to any other contrary to the specific stipulation in the order of detention, can the non-consideration or improper consideration of such representation justify a prayer for invalidation of the detention? (c) Does the omission to consider a representation on merits by the District Magistrate who has passed the order of detention under Section 3(2) of the KAAPA justify a grievance of denial of opportunity to make a representation to the Detaining Authority? Considering the scheme of the KAAPA can it be held that there is an independent right to make a representation to the District Magistrate? These are the three questions coming up for consideration in this case. 2. This writ petition for the issue of a writ of Habeas Corpus under Article 226 of the Constitution of India has been filed by the petitioner herein to direct the production of her son Biju (hereinafter referred to as the detenu) who is detained in custody in pursuance of an order passed under Section 3 of the KAAPA before this Court and to release him from such custody/detention. 3. The detenu Biju was allegedly involved in five criminal cases, four of which were pending trial and the fifth was pending investigation. He, therefore, satisfies the definition of a Known-Rowdy in Section 2(p) of the KAAPA. The 6th respondent Sub Inspector of Police, submitted Ext. P-1 report to the 4th respondent and on the basis of that the 4th respondent submitted Ext. P-2 report to the 3rd respondent. The 3rd respondent thereupon issued Ext. P-3 order of detention under Section 3 of the KAAPA. The detenu was arrested on 31-1-2009. The order of detention passed by the 3rd respondent was approved by the Government under Section 3(3) of the KAAPA on 10-2-2009. The Advisory Board subsequently recommended his continued detention. The Government has confirmed the order of detention accepting the recommendations of the Advisory Board. The detenu was arrested on 31-1-2009. The order of detention passed by the 3rd respondent was approved by the Government under Section 3(3) of the KAAPA on 10-2-2009. The Advisory Board subsequently recommended his continued detention. The Government has confirmed the order of detention accepting the recommendations of the Advisory Board. After the detention of the detenu, the petitioner herein submitted Ext. P-4 to the Home Minister and a copy thereof to the 3rd respondent. The 3rd respondent issued Ext. P-5 reply to the petitioner whereas the petitioner and the detenu have not been informed of the fate of Ext. P-4 submitted to the Home Minister. He continues in custody. 4. The petitioner in this petition has raised various grounds. The learned counsel for the petitioner has been heard. The learned Additional D. GAP has advanced arguments for the respondents. The learned counsel for the petitioner assails the impugned order of detention and the consequent detention of the detenu for a period of six months from 31-1-2009 on certain specific grounds. Though various other contentions are raised in the writ petition, at the stage of arguments, the order of detention and continued detention of the detenu are assailed only on the following two grounds: (i) There is no proper consideration of Ext. P-4 representation addressed to the Home Minister, Government of Kerala. (ii) There is no proper consideration of the copy of Ext. P-4 which was submitted to the 3rd respondent and consideration under Ext. P-5 is improper and amounts to non-consideration. 5. The learned Additional D.G.P submits that the challenge raised against the impugned order and consequent detention on these two grounds are not sustainable. The learned Additional D.G.P resists the contentions on the following planks. Ext. P-4 submitted to the Home Minister and to the 3rd respondent cannot be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA inasmuch as they are not submitted by the detenu who alone has a right under those provisions to make a representation. (a) Ext. P-4 is addressed not to the Government; but only to the Home Minister and in the light of the specific stipulation in Ext. P-3 of the authority to whom representation is to be made, the submission of Ext. (a) Ext. P-4 is addressed not to the Government; but only to the Home Minister and in the light of the specific stipulation in Ext. P-3 of the authority to whom representation is to be made, the submission of Ext. P-4 to the Home Minister and copy thereof to the 3rd respondent cannot be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA. (b) At any rate, the 3rd respondent has no obligation to consider the representation inasmuch as he, after passing the order and forwarding the same to the Government under Section 3(3), was not seized of the matter and what was submitted to him was only a copy of the representation to the Home Minister. 6. Detailed arguments have been advanced. The fact that Ext. P-4 representation submitted by the petitioner to the Home Minister and a copy thereof submitted to the District Magistrate have not been considered is very evident and is not disputed. The only question to be considered is whether the above three planks of resistance urged by the A.D.GP are acceptable. 7. Before proceeding to consider the planks of resistance, it will only be apposite to remind ourselves of the approach made by courts to the right of representation in the law relating to preventive detention. These principles are too well-settled in law that reference to specific precedents does not appear to be necessary. No person should be deprived of his life and liability except by due process of law, mandates Article 21. The Constitution permits preventive detention also subject to very strict constitutional safeguards. Any law relating to preventive detention must satisfy the mandate of Article 22 of the Constitution. Law enthusiastically reiterates the constitutional rights of the detenues. Courts have zealously insisted that the substantive and procedural safeguards must be rigidly followed. The detenu has an inalienable right to know the grounds and materials on the basis of which he is detained. These grounds and materials must be communicated to him. Such communication is not a mere formality. It has a purpose. The detenu has the right to make a representation to the Government and Advisory Board. To facilitate making of such a representation, he has a right to know the grounds and materials on which the order of detention is founded. These grounds and materials must be communicated to him. Such communication is not a mere formality. It has a purpose. The detenu has the right to make a representation to the Government and Advisory Board. To facilitate making of such a representation, he has a right to know the grounds and materials on which the order of detention is founded. The right to make a prompt and early representation against the detention includes the right to have such representation considered promptly and properly. Rigid compliance, of the procedural stipulations is insisted by law and judicial precedents. Even when actual prejudice otherwise is not strictly proved, the denial of opportunity to make an effective representation and non-consideration of such representation will entail invalidation of the detention. In the battle for protection of the sacro sanct rights of the citizen for freedom and liberty procedural stipulations and safeguards have been powerful weapons. Even when the detenu are shown to be not paragons of virtue, courts have conceded to them the benefits or advantages arising from such non compliance of procedure. This is only because of the paramount importance of the right to freedom and individual liberty in a democracy wedded to rule of law. Having so reminded ourselves of the principles we shall now proceed to consider the three planks of resistence. 8. Plank A: Who can make a representation under Article 22(5) of the Constitution and Section 7 of the KAAPA? This appears to be the crucial question coming up for consideration under this plank. We extract Article 22(5) of the Constitution below: 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) 9. We now extract Section 7(1) to 7(3). Section 7(4) is omitted as not relevant. 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) 9. We now extract Section 7(1) to 7(3). Section 7(4) is omitted as not relevant. 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. (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 his detention; Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security. (3) The Superintendent of the Jail where such person is detained shall afford him reasonable opportunity to consult a lawyer and reasonable assistance in making representation against the detention order to the Government or to the Advisory Board. 10. It is of course well-settled that the prayer for issue a writ of habeas corpus can be made by a relative of the detenu who is under a disability because of his detention. Such person has the locus to come to the court. But that principle cannot certainly be extended to a representation contemplated under Article 22(5) of the Constitution and Section 7 of the KAAPA. 11. A careful reading of the provisions clearly and unambiguously convey that the right of representation contemplated under Article 22(5) of the Constitution and Section 7 of the KAAPA is given only to the detenu concerned. Under Article 22(5) of the Constitution, the mandate is that the detaining authority shall communicate the order to the detenu and afford him the earliest opportunity to him to make a representation. Under Article 22(5) of the Constitution, the mandate is that the detaining authority shall communicate the order to the detenu and afford him the earliest opportunity to him to make a representation. Similarly, under Section 7 of the KAAPA also, it is very clear from the relevant portions extracted and emphasised above that the right to make a representation is conferred specifically on the detenu only. The scheme of Section 7 further makes it clear that it is the detenu who has the right to make a representation and he is to be aided and assisted by the officials to prepare such representation. 12. The question as to who has the right to make such a representation is according to us crucial as the non-consideration, improper consideration and the delay in consideration of such a representation will all lead to invalidation of the detention. A number of binding precedents have been referred to. We are not specifically referring to those decisions as there is no dispute on the well-established proposition of law that in a case of preventive detention, a right to represent against such detention is unquestionably available and that any non-consideration, improper consideration and delay in consideration of such representation or the denial of opportunity to make such representation would lead to invalidation of the detention. Precedents galore on this aspect and the counsel have taken us through these precedents. We have gone through them. As there is no dispute on the question of law, we are not choosing to advert to those precedents specifically. If the court were to hold that persons other than the detenu, independent of the detenu, also have the right under Article 22(5) of the Constitution of India and Section 7 of the KAAPA to make representation, the non-consideration, improper consideration and delay in consideration of all such representations will have to be held to be fatal. 13. The learned counsel were requested to research and explain to the court whether there is any specific precedent covering the issue as to who can make a representation under Article 22(5) of the Constitution and Section 7 of the KAAPA. We are informed that research by the counsel have not helped them to trace any decision specifically on the question though there are precedents which refer to such representations made by not only detenues but also their close relatives, advocates etc. We are informed that research by the counsel have not helped them to trace any decision specifically on the question though there are precedents which refer to such representations made by not only detenues but also their close relatives, advocates etc. A careful reading of these precedents reveal that this question was not specifically considered in any precedent cited. 14. The question squarely has to be considered now as to who can make the representation. We find not a semblance of doubt in our mind that the right is conferred on the detenu and for the detenu to take advantage of non-consideration, improper consideration or delayed consideration of such representation, the representation must be made by the person/detenu who has the right to make the representation. It must be made by him or any other claiming to make the representation in his name, on his behalf and as authorised by him. The court must be satisfied that such representation was made by the detenu or on his behalf in exercise of his constitutional or statutory right to make the representation. 15. The learned counsel for the petitioner points out that in Shalini Soni v. Union of India AIR. 81 S. C. 431, the Supreme Court had occasion to consider this question though indirectly and there are observations in paragraph 4 which suggest that the representation can be made by anyone and such representation can be reckoned as valid representation under Article 22(5) of the Constitution. We extract paragraph 4 below: "The writ petition has to succeed on both the grounds. As we mentioned earlier the answer of the respondents in regard to the ground based on the failure of the detaining authority to consider the representation dated July 27,1980 submitted by the detenu through his Advocate was not that the representation was ever considered but that it was not a representation at all. We are unable to agree with the submission made on behalf of the respondents. The representation has not to be made in any prescribed form. There is no formula nor any magical incantation like 'open sesame' to be repeated or chanted in order to qualifi; a communication as a representation. We are unable to agree with the submission made on behalf of the respondents. The representation has not to be made in any prescribed form. There is no formula nor any magical incantation like 'open sesame' to be repeated or chanted in order to qualifi; a communication as a representation. So long as it contains a demand or a request for the release of the detenu in whatever form or language couched and a ground or reason is mentioned or suggested for such release, there is no option but to consider and deal with it as a representation for the purpose of Art. 22(5) of the Constitution. The communication dated July 27,1980 contains a demand that the detenu should be released forthwith. It mentions a reason for the demand for release, namely, that copies of statements, documents and materials relied upon by the detaining authority in arriving at the requisite satisfaction was not furnished to the detenu and that the detention was therefore, illegal. In support of the claim that the detention was illegal reference was made to a decision of the Gujarat High Court. The communication, then, ended with a reiteration of the request for the release of the detenu. We find it impossible to read the communication as anything but a representation against the order of detention. True the detenu also asked for copies of documents to enable him to make a representation if the detaining authority was not prepared to accept his demand for revocation of the order of detention. The request for copies of documents to enable the detenu to make a further representation on merits as well as on other grounds in the event of the detaining authority not agreeing to revoke the order of detention for the reason mentioned in the communication would not divest the communication of its character as a representation. We have no doubt that the communication dated July 27, 1986 was a representation which was in law required to be considered by the detaining authority. Quite obviously, the obligation imposed on the detaining authority, by Art. 22 (5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Quite obviously, the obligation imposed on the detaining authority, by Art. 22 (5) of the Constitution, to afford to the detenu the earliest opportunity of making a representation, carries with it the imperative implication that the representation shall be considered at the earliest opportunity. Since all the constitutional protection that a detenu can claim is the little that is afforded by the procedural safeguards prescribed by Art. 22(5) read with Art. 19, the Courts have a duty to rigidly insist that preventive detention procedures be fair and strictly observed. A breach of the procedural imperative must lead to the release of the detenu. The representation dated July 27, 1980 was admittedly not considered and on that ground alone, the detenu was entitled to be set at liberty." (emphasis supplied) 16. The question whether anyone else and not the detenu can make such a representation was certainly not considered specifically in that decision. The representation in that case was made by the detenu himself through his Advocate. All that was held in that decision was that so long as the representation submitted by the detenu through his advocate contains a demand or request for release of the detenu in whatever form or language and a ground or reason is mentioned or suggested for such a relief there is no option but to consider and deal with it as a representation for the purpose of Article 22(5) of the Constitution. What appears to be important to us is that the said decision has not considered whether the representation can he made by anyone other than the detenu. 17. The learned counsel for the petitioner then relies on the decision in Union of India v. Diljeet Singh (1999) 2 S. C. C. 672 . He relies on the observations is paragraph 17 to build up a contention that the representation can be made either by the detenue or any person on his behalf against he order of detention. We extract paragraph 17 below: "17. He relies on the observations is paragraph 17 to build up a contention that the representation can be made either by the detenue or any person on his behalf against he order of detention. We extract paragraph 17 below: "17. Here it may be useful to refer to clause (5) of Article 22 of the Constitution, which runs thus: '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 order.' The safeguards for the detenu embodied in clause (5) of Article 22 are twofold. The authority making the older of detention 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. From this analysis of the clause, it appears to us that consideration of the report of the State Government by the Central Government is not part of the safeguards embodied under Article 22 (5) of the Constitution. The Central Govertmlent's power to revoke the order of detention under Section 11 may be either suo motu on consideration of report under Section 3 (2) or on the representation made either by the detenu or any other person on his behalf against the order of detention. Consideration of report sent up by the State Government under Section 3 (2) of the COFEPOSA Act by the Central Government or a competent authority to whom that power is delegated is a statutory requirement which is in addition to the obligations imposed by Article 22(5) of the Constitution. Non-compliance of the statutory requirement, like abrogation of safeguards, would vitiate continued detention of a person ordered to be detained under the COFEPOSA Act." 18. It is crucial to note that in that case the question that was considered is whether an order of revocation can be passed under Section 11 of the COFEPOSA Act and it was observed that the Central Government's power to revoke the order of detention under Section 11 can be made either suo motu or on the representation of the detenu or any other person on his behalf. The question whether anyone other than the detenu can make a representation independently under Article 22(5) of the Constitution of India was not considered specifically in that decision also. 19. We have no hesitation to agree that many others-friends, relatives, human rights workers, political and social activists etc. may and can raise objections against the detention. Such objections raised/or representations made to the Government may justify invocation of the powers under Section 13 of the KAAPA corresponding to Section 11 of the COFEPOSA Act; but that is far from saying that such representations can be reckoned as representations contemplated under Article 22 (5) of the Constitution and Section 7 of the KAAPA. Government's power for revocation may be exercised at the instance of not only the detenu but also others; but all such representations which people at large may be making against the detention cannot be reckoned as representations made in exercise of the constitutional right under Article 22 (5) of the Constitution and the statutory right under Section 7 of the KAAPA. In short, the representation under Article 22(5) of the Constitution or under Section 7 of the KAAPA can be made only by the detenu and not by any other. This is not to say that a counsel, a power of attorney holder or a relative, duly authorised, cannot make such a representation in the name of and on behalf of the detenu. But the representation must be in the name of and on behalf of the detenu specifically. All the various persons who have interest in the detenu and who have objections against the detention can independently make representations and all such representations can be considered by the Government and the authorities to decide whether the power for revocation conceded by statute can or ought to be invoked. But such representations cannot be elevated to the status of representations made by the detenu under Article 22(5) of the Constitution and Section 7 of the KAAPA as to persuade the court to invalidate the order of detention on the ground that such independent representations have not been considered or considered properly and expeditiously. To be reckoned as a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA, the representation must be one made in his name and on his behalf by himself or his authorised representatives. To be reckoned as a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA, the representation must be one made in his name and on his behalf by himself or his authorised representatives. All other representatives made independently by others cannot claim that elevated status. 20. Coming back to the facts of the case, Ext. P-4 is the representation. That representation was submitted to the Home Minister and a copy thereof was submitted to the 3rd respondent. The 3rd respondent issued Ext. P-5 reply whereas the Home Minister, the tiles reveal, forwarded it to the Superintendent of Police for his remarks. We agree with the learned Additional D.G.P. that Ext. P-4 representation to the Home Minister and to the 3rd respondent and a copy thereof submitted by the petitioner herein cannot be considered as representations under Article 22 (5) of the Constitution and Section 7 of the KAAPA inasmuch as they are not representations made by the detenu or on behalf of the detenu and in his name by any other. A detenu disabled by detention may make a representation through his duly authorised Advocate, authorised representative, power of attorney or a close relative. But we repeat that such representation must clearly show that the representation emanates from the detenu and is made through or on his behalf and under his authority or name by some others. Ext. P-4 does not at all reveal that it is a representation made by the petitioner herein for and on behalf of the detenu or on the basis of any authority given by him. Nay, it makes no specific reference to the order of detention. The number or details of the order of detention are not furnished. It does not show that it is submitted in exercise of the Constitutional and statutory right under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. It does not at all show that the same is made on behalf of, or in the name of or as authorised by the detenu. It does not show that it is submitted in exercise of the Constitutional and statutory right under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. It does not at all show that the same is made on behalf of, or in the name of or as authorised by the detenu. Where a counsel duly authorised makes a representation or a power of attorney holder on the strength of that instrument makes a representation on behalf of the detenu or a close relative atleast claiming to be making a representation on behalf of the detenu makes such a representation, the same can be considered as one under Article 22(5) of the Constitution. But a representation like Ext. P-4 which does not trace itself to the right of the detenu under Article 22(5) of the Constitution and Section 7 of the KAAPA cannot be reckoned as such a representation. Consequently the non-consideration of the same cannot be reckoned as a sufficient reason to invalidate the detention. 21. The decision in P.V. Chary v. R.D. Tyagi 1995 AIHC 6174 (Bombay High Court), according to us only lays down that where an advocate makes a representation on behalf of the detenu, the same can also be reckoned as a valid representation under Article 22(5) of the Constitution even when it is not accompanied by a vakalat nama. We must alertly note that there is always scope for plurality of representations made by various persons who are interested in the detenu or are interested in the issues of governance. Such representations which may emanate from them independent of the detenu cannot certainly be elevated to the status of representations under Article 22(5) of the Constitution and Section 7 of the KAAPA. 22. In the instant case the detenu who was informed specifically of his right under Section 7 of KAAPA to make representations to the Government and the Advisory Board, advisedly it appears to us, chose to make the representation only to the Advisory Board through Prison authorities. He did not, again advisedly it appears to us, choose to make any representations to the Government or the detaining authority. In this facts scenario, it would be idle to trace Ext. He did not, again advisedly it appears to us, choose to make any representations to the Government or the detaining authority. In this facts scenario, it would be idle to trace Ext. P-4 and its copy submitted by the petitioner to the Home Minister or the 3rd respondent to the right of the detenu under Article 22(5) of the Constitution of India and Section 7 of the KAAPA. The resistance on plank No. 1 succeeds. 23. The mere fact that copy of the order of detention was served on the petitioner cannot confer on the petitioner a right to make a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. In obedience to the precedential mandate, subsequently recognised statutorily, the relative of the arrestee has to be informed of the arrest and reasons for the arrest. Communication of information in performance of such duty by the arresting/detaining authority cannot confer on such relative a right to make a representation independently under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. 24. Plank No.2: In view of our finding under plank No. 1, this point does not really arise for determination as Ext. P-4 and its copy submitted to the Home Minister and the 3rd respondent cannot be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA. But the question is raised as to whether a representation to the Home Minister or the 3rd respondent can be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA. 25. The order of detention and grounds thereof which are communicated to the detenu clearly show that a representation to satisfy Article 22(5) of the Constitution and Section 7 of the KAAPA is to be submitted to the Additional Chief Secretary and the Advisory Board. The address and details to which the representations are to be made are shown clearly in Ext. P-3 order. The scheme of Section 7 does also reveal that the Superintendent of Prison where the detenu is detained is bound to afford assistance to the detenu to make a representation. The address and details to which the representations are to be made are shown clearly in Ext. P-3 order. The scheme of Section 7 does also reveal that the Superintendent of Prison where the detenu is detained is bound to afford assistance to the detenu to make a representation. When the order of detention communicated to the detenu specifically shows that the representation is to be made to the Additional Chief Secretary and to the Chairman of the Advisory Board, the representation made is not to those authorities but to the Home Minister and the 3rd respondent. Can this be reckoned as a proper representation is the question raised? More importantly the question is whether non consideration of such a representation can lead to invalidation of the detention. 26. The learned counsel for the petitioner submits that the Home Minister heads the Home Department and in these circumstances the submission of the representation to the Home Minister who heads the Home Department and not to the Additional Chief Secretary of the Home Department cannot be reckoned as crucial as to conclude that the representation is not a valid representation under Article 22(5) of the Constitution and Section 7 of the KAAPA. The authority to whom representation is to be made is specified clearly in the order of detention. If the order of detention is submitted to any other authority it will only be reasonable for the court to insist that reasons must be revealed as to why such representations are made not to the specified authority but to others. As stated earlier, this is crucial because non consideration of the representation properly or within time may lead to invalidation of the order of detention. 27. The Supreme Court of India had occasion twice to consider the legal effect and consequence of such representations made to authorities different from the authorities specified in the order of detention and grounds communicated to the detenu. The decisions in Union of India v. Paul Manickam (2003) 8 S.C.C. 342 and Union of India v. Chaya Ghoshal (2005) 10 S. C. C. 97 are relied on by the learned Additional Director General of Police in this context. We have considered the said decisions. The decisions in Union of India v. Paul Manickam (2003) 8 S.C.C. 342 and Union of India v. Chaya Ghoshal (2005) 10 S. C. C. 97 are relied on by the learned Additional Director General of Police in this context. We have considered the said decisions. They are authority for the proposition that representations must clearly be made to the specified authority and not to others and where such representations are made to different authorities, the reasons must be revealed to justify such submissions made to other authorities. The following observations in paragraph 17 of Chaya Ghoshal's case (supra) are of vital significance. "Whenever a representation is made to the President or the Governor instead of the indicated authorities, it is but natural that the representation should indicate as to why the representation was made to the President or the Governor and not to the indicated authorities. It should also be clearly indicated as to whom the representation has been made specifically. The President as well as the Governor, no doubt are constitutional Heads of the respective Governments but day-to-day administration at respective levels is carried on by the Heads of the Department--Ministries concerned and designated officers who alone are ultimately responsible and accountable for the action taken or to be taken in a given case. If really the citizen concerned genuinely and honestly felt or is interested in getting an expeditious consideration or disposal of his grievance, he would and should honestly approach the really concerned authorities and would not adopt any dubious devices with the sole aim of deliberately creating a situation for delay in consideration and cry for relief on his own manipulated ground, by directing his representation to an authority which is not directly/immediately concerned with such consideration." 28. In the instant case, representation is seen made to the Home Minister. The Home Minister as the political executive receives various representations. When a Minister is on camp or at the headquarters, several persons come and make representations to him and to his staff Unless the representations clearly show that they are made on behalf of the detenu and in exercise of the right to represent guaranteed to him under the Constitution and the statute, it would be idle to expect such representations to receive the consideration which representations under Article 22(5) of the Constitution and Section 7 of the KAAPA are bound to receive. It would then be idle to complain that such casual representations did not receive the consideration which a representation under Article 22(5) of the Constitution is entitled. It would be unjust for the court to invalidate the detention on the ground that such a representation was not considered properly and expeditiously. For having made the representation to the Home Minister (Ext. P-4), no reasons whatsoever are shown by the petitioner. The endorsement by the Home Minister on Ext. P-4 which is placed before us clearly shows that the Home Minister was not told, was in the dark and did not comprehend that this was a representation traceable to the constitutional right under Article 22(5) of the Constitution and statutory right under Section 7 of the KAAPA or that it is with specific reference to Ext. P-3 order. Vague and sweeping representations like the one in Ext. P-4, it is quite natural and likely, may not receive the attention which serious representations by the detenu under Article 22(5) of the Constitution and Section 7 of the KAAPA are bound to receive. In having made such representations under Ext. P-4, the petitioner has herself led the authorities to commit the mistake of not being aware that they are representations under Article 22(5) of the Constitution and Section 7 of the KAAPA. 29. Inasmuch as Ext. P-4 representation submitted to the Home Minister and a copy thereof submitted to the 3rd respondent are not submitted to the authorities specified in Ext. P-3 and a reading of Ext. P-4 cannot easily and clearly reveal that they were representations under Article 22(5) of the Constitution and Section 7 of the KAAPA, we are of the opinion that the detenu cannot take advantage of the omission/failure/delay in consideration of Ext. P-4. 30. An active effort on the part of the petitioner to induce the Home Minister and the Detaining Authority to commit an error and take undue advantage of that error is clearly noticed. A casual representation like Ext. P-4 is submitted by the petitioner to the Home Minister. Ext. P-3 order of detention is not referred to specifically in that. It is not stated that Ext. P-4 is a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. A casual representation like Ext. P-4 is submitted by the petitioner to the Home Minister. Ext. P-3 order of detention is not referred to specifically in that. It is not stated that Ext. P-4 is a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA. It is not stated that the representation is made by the detenu or on his behalf It is not made in his name. Knowing fully well that such a casual representation may not receive prompt and serious consideration, such a representation appears to have been made with the intention of taking advantage of the same later. The detenu who was apprised of his right chose to make a representation under Article 22(5) of the Constitution of India and Section 7 of the KAAPA only to the Advisory Board and not to the authority/ officer specified in the order of detention. No semblance of a reason is furnished as to why the representation is being made to the Home Minister and not the specified officer of Government. The conclusion appears to be inescapable that Ext. P-4 and its copy cannot be held to be a representation under Article 22(5) of the Constitution of India and Section 7 of the KAAPA and non consideration of the same cannot lead to invalidation of detention. 31. Less said about the representation to the detaining authority (R-3) the better. Copy of the representation is not produced. The original submitted to the 3rd respondent is not called for. It is submitted that a copy of Ext. P-4 was submitted to the third respondent and that has evoked Ext. P-5. Copy of Ext. P-4 addressed to the Home Minister submitted by the petitioner (and not the detenu) cannot, in these circumstances, be reckoned as a representation under Article 22(5) of the Constitution of India or Section 7 of the KAAPA to the detaining authority even assuming that such a right to make a representation to the Detaining Authority exists. 32. We do, in these circumstances, accept the resistance on plank No. 2 and hold that Ext. P-4 representation and a copy thereof submitted to the Home Minister and the 3rd respondent cannot be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA and consequently the non consideration of such representation/copy thereof cannot justify invalidation of the order of detention. 33. P-4 representation and a copy thereof submitted to the Home Minister and the 3rd respondent cannot be reckoned as representations under Article 22(5) of the Constitution and Section 7 of the KAAPA and consequently the non consideration of such representation/copy thereof cannot justify invalidation of the order of detention. 33. Plank No. 3: The learned counsel for the petitioner contends that notwithstanding the statutory right to make representations before the Government and the Advisory Board, the detenu has a constitutional right to make a representation to the detaining authority. The learned counsel for the petitioner in this context relies on the decision in Kamaleshkumar Ishwardas Patel v. Union of India 1995 S.C.C. (Crl) 643 to contend that even in the absence of a specific stipulation in the statute conferring on the detenu a right to make a representation before the authority/officer who issued the order of detention, such a right must be held to be inherent in the constitutional provision under Article 22(5) of the Constitution. The absence of such a provision in the statute or the existence of a provision in the statute conferring a right to make representations to other authorities will not take away the constitutional right under Article 22(5) of the Constitution to make a representation to the authority which passed the order of detention. 34. We have already held that Ext. P-4 submitted by the petitioner to the Home Minister and a copy thereof submitted cannot be reckoned as a representation under Article 22 (5) of the Constitution of India or Section 7 of the KAAPA. This is for two reasons. Firstly that the representation is not made by the Detenu and secondly that it is not submitted to the specified officer of the Government. We will assume that notwithstanding Section 7 of the KAAPA, the detenu has an independent right under Article 22(5) of the Constitution of India to make a representation to the detaining authority. But even then copy of Ext. P-4 submitted to the 3rd respondent cannot be reckoned as a representation under Article 22(5) of the Constitution of India inasmuch as it is not one submitted by the detenu or on his behalf and in his name by another. In this view of the matter this plank of resistance does not really arise for consideration. But in the light of the arguments advanced, we are proceeding to consider the same also. In this view of the matter this plank of resistance does not really arise for consideration. But in the light of the arguments advanced, we are proceeding to consider the same also. 35. The crucial question raised in this case is whether under the KAAPA, the detenu can be held to have any such rights to make a representation to the District Magistrate who passed the order under Section 3(2). The learned Additional D.G.P. contends that in the scheme of the Act, such a right to make a representation before the District Magistrate who passed the order must be held to be non existent as there is an effective right to make a representation before the Government and it is the Government which has to approve the order of detention for continued detention beyond 12 days. It will be apposite in this context to consider the scheme of Section 3 of the KAAPA. We extract Section 3: 3. Power to make orders for detaining known Goondas and known Rowdies.-(1) The Government or an officer authorised under sub-section (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any Known Goonda or Known Rowdy, that with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained. (2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect of such persons residing within his jurisdiction or in respect of such persons not so resident who have been indulging in or about to indulge in or abet any anti-social activities within such jurisdiction. (3) When any order is made under this section by the authorised officer under subsection (2), he shall forthwith report the fact to the Government and the Director General of Police, Kerala, together with a copy of the order and supporting records which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than 12 days, excluding public holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been approved by the Government or by the Secretary, Home Department if generally so authorised in this regard by the Government." (emphasis supplied) 36. Under Section 3(1), the Government is competent to pass an order of detention. That power can also be exercised by the District Magistrate duly authorised under subsection (2). The order of detention can be passed by the District Magistrate; but the District Magistrate passes that order only on the basis of the authorisation by the Government. Though it is the District Magistrate who passes the order, the power is traceable only to the Government under Section 3. As soon as the District Magistrate passes the order, he is expected to forthwith forward all the relevant papers and documents to the Government and the law insists that such order of detention must be approved by the Government immediately thereafter -at any rate, within a period of 12 days of the detention and if there is no such approval, the order of detention lapses and there can be no continued detention on the basis of the order of detention passed by the District Magistrate. The learned Additional D.C.P. contends that in the scheme of Section 3, an independent and different right to make a representation to the District Magistrate who passes the order under Section 3(2) cannot be spelt out. It is not as though the detenu cannot make a representation to the Government before the elapse of the period of 12 days and such representation will certainly have to be considered by the Government, if such representation reaches the Government before the order of approval is made. It is not as though the detenu cannot make a representation to the Government before the elapse of the period of 12 days and such representation will certainly have to be considered by the Government, if such representation reaches the Government before the order of approval is made. Merely because the order is passed by the District Magistrate, it may be improper, inapposite and inexpedient to place the burden on him to consider the representation of the detenu even after he has forwarded the records to the Government to facilitate grant of approval under Section 3(3). In this context we note that there is no plea whatsoever that this is a case of detention by mistaken identity in which event an immediate representation pointing out that vice can obviously he made to the Detaining Authority. 37. We have already held that the copy of the representation Ext. P-4 submitted by the petitioner herein to the 3rd respondent cannot be reckoned as a representation undo-Article 22(5) of the Constitution and Section 7 of the KAAPA for the reason that it is not submitted by the detenu. But even assuming that it is submitted by the detenu, it cannot be held that the detaining authority, who, as soon as he passes the order, must forward the records to the Government for approval is obliged to consider a representation received by him after the records had already gone out from his possession to the Government. We are, in these circumstances, of the opinion that even if the representation were made by the detenu himself, in the light of the statutory provisions and the scheme of Section 3, it cannot be held that the District Magistrate, who passes the order under Section 3(2) on the basis of authorisation by the Government and who has already forwarded all records to the Government for approval is bound to consider such a representation submitted to him and the non-consideration of such representation can lead to invalidation of the order of detention. The right to make a representation to the detaining authority recognised in Kamaleshkamar's case (supra) is effectively taken care of by the right to make representation which can be made to the Government which the Government is certainly obliged to consider the same, if the same reaches the Government before approval is granted under Section 3(3). 38. The right to make a representation to the detaining authority recognised in Kamaleshkamar's case (supra) is effectively taken care of by the right to make representation which can be made to the Government which the Government is certainly obliged to consider the same, if the same reaches the Government before approval is granted under Section 3(3). 38. It must be noted that the Supreme Court in Kamaleshkumar's case (supra) was dealing with Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act and had observed specifically as shown below in paragraph 34. "There is nothing in the provisions of these enactments to show that the role of the officer comes to an end after he has made the order of detention and that thereafter he ceases to be the detaining authority and the Government concerned which had empowered him assumes the role of the detaining authority. We are unable to construe the provisions of the said enactments as providing for such a limited entrustment of power on the officer who is specially empowered to pass the order. An indication to the contrary is given in Section 11 of the COFEPOSA Act and Section 12 of the PIT NDPS Act which preserve the power of such officer to revoke the order that was made by him. This means that the officer does not go out of the picture after he has passed the order of detention." Different is the statutory scheme under the KAAPA. The District Magistrate ceases to be the Detaining Authority and the Government takes over the functions of the detaining authority once the order of detention is passed under Section 3(2) and the records are forwarded by the District Magistrate to the Government. The representation does not relate to a grievance of arrest of a wrong person on mistaken identity. The non consideration of such a representation by the District Magistrate on its merits cannot lead to invalidation of the detention. 39. Ext. P-5 shows that the 3rd respondent has only advised the petitioner that he having already forwarded the records to the Government, the representation ought to be made not before him but before other authorities. In this context, non-consideration of the copy of Ext. P-4 addressed to the Home Minister by the petitioner and not the detenu. submitted to the 3rd respondent cannot also deliver any advantage or benefit to the petitioner. In this context, non-consideration of the copy of Ext. P-4 addressed to the Home Minister by the petitioner and not the detenu. submitted to the 3rd respondent cannot also deliver any advantage or benefit to the petitioner. It cannot lead to invalidation of the order of detention. 40. In the light of the above discussions, we find that this writ petition is only liable to be dismissed. We accordingly dismiss this writ petition.