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2010 DIGILAW 491 (KER)

Suresh v. Union Of India

2010-07-02

M.C.HARI RANI, R.BASANT

body2010
Judgment :- Basant, J. 1. Does Section 10(2) of the Kerala Anti-Social Activities (Prevention) Act (hereinafter referred to as 'the KAAPA') apply, control and guide proceedings under Section 15(2) of the KAAPA? This is the short question of law that arises for consideration in this case. 2. This petition has been filed by the petitioner to assail an order of restraint passed against his brother by the 3rd respondent under Section 15(1) of the KAAPA, which order has been upheld by the Advisory Board constituted under Section 8 of the KAAPA vide Ext.P5 order. It is unnecessary to advert to the relevant facts in any greater detail in the nature of the limited contention that is raised before us. The petitioner's brother one Sushi was proceeded against on the ground that he is a known goonda. Show cause notice dated 16/11/2009 (Ext.P2) was issued. That evoked Ext.P3 reply from the said Sushi. Ext.P4 order of restraint under Section 15 of the KAAPA was passed by the 3rd respondent against the said Sushi on 19/1/2010. That was served on him on 28/1/2010. The order directed the said Sushi not to enter specified areas for a period of four months from the date of service of the said order Ext.P4. An appeal/representation was preferred against the said order under Section 15(2) of the KAAPA before the Advisory Board. The Advisory Board, by Ext.P5 order, dismissed the said appeal/representation on 03/03/2010. The period of restraint under Ext.P4 order has already expired. But the petitioner is still interested in challenging the said order of detention for the reason that prosecution under Section 15(4) of the KAAPA has been initiated against the said Sushi on the ground that on 02/03/2010 he has violated the order. The said Sushi is in custody in connection with that prosecution. The petitioner hence has preferred this writ petition on his behalf to challenge Exts.P4 and P5. 3. We will straight away advert to the fact that Ext.P5 order was passed by the Advisory Board under Section 15(2) of the KAAPA. When the Advisory Board passed that order, even though the Advisory Board consisted of three members, only two of the three were present. It is not now disputed that on the relevant date, there were three members on the Advisory Board and the third member Sri.T.K.Wilson was on leave due to illness. 4. When the Advisory Board passed that order, even though the Advisory Board consisted of three members, only two of the three were present. It is not now disputed that on the relevant date, there were three members on the Advisory Board and the third member Sri.T.K.Wilson was on leave due to illness. 4. The learned counsel for the petitioner raises before us the only contention that the appeal preferred by the appellant has not been properly disposed of by the Advisory Board. Inasmuch as his appeal/representation under Section 15(2) of the KAAPA has not been properly disposed of by the Advisory Board, the order of restraint passed under Section 15(1) of the KAAPA that is, Ext.P4 order, is liable to be set aside. This, in short, is the only contention raised. 5. An Advisory Board is constituted as per the provisions of Section 8 of the KAAPA. We extract the same below: “8. Constitution of Advisory Boards.- (1) The Government shall constitute one or such number of Advisory Boards as may be necessary for the purposes of this Act, with such territorial of functional jurisdiction, as may be specified. (2) Every such Board shall consist of a Chairman who is, or had been Judge of a High Court and two other members who are qualified under the Constitution of India to be appointed as a Judge of a High Court. (3) The salary, allowances, tenure and service conditions of the Chairman and Members of the Advisory Board may be such as may be prescribed. 6. We may, at the outset, note that an Advisory Board is to be constituted not only to answer references under Section 9; but also to discharge the duties/obligations and exercise the powers under Section 15(2) of the KAAPA. We extract Section 15(2) of the KAAPA below: 15. Power to make orders restricting the movements of certain persons.- (2): Any person aggrieved by an order issued under sub-section (1) may represent before the Advisory Board within fifteen days of the date of service of the order and the Board on receipt of such representation, consider the same, and after enquiring into the facts and circumstances in such manner as it may deem fit, shall within thirty days of the date of receipt of such representation, annul, amend or confirm the order, either in part or in full. 7. 7. Section 10 of the KAAPA deals with procedure of Advisory Board and further action. Section 10 has four sub- sections. We extract the entire Section below: 10. Procedure of Advisory Board and further action.- (1) The Advisory Board to which the reference is made under the above section shall after considering the reference and the materials placed before it and after calling for such further information as it may deem necessary from the Government or from any person called for the purpose through the Government, or from the person concerned and if, in any particular case, it considers necessary so to do or if the person concerned desires to be heard in person, after hearing him in person, prepare its report specifying in a separate paragraph thereof its opinion as to whether or not there is sufficient cause for the detention of the person concerned and submit the same within nine weeks from the date of detention of the person concerned. (2) When there is a difference of opinion among the members forming the Advisory Board, the opinion of the majority of such members shall be deemed to be the opinion of the Board. The absence of a member shall not invalidate the decision of the Board. (3) A person against whom an order of detention has been made under this Act shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board, and the proceedings of the Advisory Board and its report, except that part of the report in which the opinion of the Advisory Board is specified, shall be confidential: Provided that the Board has power to permit legal practitioners in the cases deemed fit. (4) In every case where the Advisory Board has reported that there is in its opinion sufficient cause for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period as it thinks fit and in every case where the Advisory Board has reported that there is in its opinion no sufficient cause for the detention of a person concerned the Government shall revoke the detention order and cause the person to be released forthwith. 8. The learned counsel for the petitioner contends that the Advisory Board, to exercise functions under the KAAPA, must have three members. 8. The learned counsel for the petitioner contends that the Advisory Board, to exercise functions under the KAAPA, must have three members. If all the three members do not sit together and exercise their functions, it cannot be said to be the exercise of powers by the Board. The learned counsel hence contends that the appeal under Section 15(2) in the instant case has not been disposed of by the Advisory Board. 9. The learned Government Pleader promptly points out that Section 10(2) of the KAAPA takes cognizance of the situation where one of the three members may be absent for any reason. We have already extracted Section 10(2) of the KAAPA. It stipulates that if there is a difference of opinion among members in the three member Advisory Board, the opinion of the majority of members shall be deemed to be the opinion of the Board. The absence of a member, it is stipulated, shall not invalidate the decision of the Board. To us, the language of Section 10(2) of the KAAPA appears to be simple and it conveys that if there is no unanimity in the Advisory Board, the decision must be by majority. Section 10(2) realistically takes note of the situation that all three members may not simultaneously be available. Hence it is stipulated that the absence of one member (a member) shall not invalidate the decision of the Board. If there be absence of one member unless there is unanimity among the other two, no matter can ever be decided as there will be no opinion of the majority. If there be differences of opinion among the members, the decision has to be by majority. If only two members are present and the third happens to be absent and the two members disagree, there can never be a decision of the Board as contemplated under Section 10(2) of the KAAPA. Thus the absence of a member as contemplated under Section 10(2) of the KAAPA shall not invalidate the decision of the Board only when the other two are in agreement and there is unanimity among them. So construed, Section 10(2) of the KAAPA only stipulates that if there is unanimity among the other two, the absence of the 3rd member shall not, in any way, affect the unanimous decision of the other two. 10. The learned counsel for the petitioner does not accept this view. So construed, Section 10(2) of the KAAPA only stipulates that if there is unanimity among the other two, the absence of the 3rd member shall not, in any way, affect the unanimous decision of the other two. 10. The learned counsel for the petitioner does not accept this view. The learned counsel contends that Section 10(2) of the KAAPA can have no application whatsoever when the Advisory Board exercises functions under Section 15(2) of the KAAPA. According to the learned counsel, all the sub-sections of Section10 must be understood to relate to the exercise of the function of the Advisory Board on a reference under Section 9 of the KAAPA. Section 10(2) of the KAAPA cannot control or guide the functions of the Advisory Board under Section 15(2) of the KAAPA. Under Section 15(2) of the KAAPA all the members of the Board will simultaneously have to be present to decide on an appeal/representation made to it under Section 15(2) of the KAAPA. 11. We are unable to accept this contention. It is true that Section 10(1), 10(3) and 10(4) may not have any application to the discharge of the duties of the Advisory Board under Section 15(2) of the KAAPA. All those three sub-sections relate to the power/procedure of the Advisory Board when it considers a reference under Section 9 of the Act. However, Section 10(2) of the Act is general in nature. We have to read it in the light of Section 8 of the Act which speaks of the necessity to constitute an Advisory Board not for the discharge of the functions under Section 9 alone; but for discharge of all functions under the Act. The Advisory Board, Section 8 mandates is to be constituted "for the purposes of the Act". In this view of the matter, Section 10 (2) of the Act which is specific, must be understood to control and guide not the functions of the Board under Section 9 of the Act alone; but also functions which the Board has to discharge under Section 9 and 15(2) of the Act for which the Board is constituted under Section 8 of the Act. There is nothing in the language of sub-Section 2 or in the generality of the provisions of Section 10 which can persuade this Court to read down the scope of Section 10(2) of the Act as to apply only to references under Section 9 of the Act and jump to a conclusion that there is no guideline whatsoever regarding the procedure to be followed when a representation is considered under Section 15(2) of the Act. We take the view that Section 10(2) of the Act controls and guides the exercise of power of the Board under Section 15 (2) of the Act also. 11. So reckoned, the unanimous decision of the Advisory Board rendered in Ext.P5 in exercise of its jurisdiction under Section 15(2) of the Act must be held to be absolutely justified by the statutory provision in Section 10(2) of the Act. We find no merit in the challenge. 12. No other contentions are raised. We do not think it necessary to delve deeper into the possible question which is not raised before us as to whether this petition by the petitioner on behalf of his brother who is in custody is entertainable. 13. This writ petition is, in these circumstances, dismissed.