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2018 DIGILAW 672 (KER)

Thankam W/o. Babu v. State of Kerala

2018-08-14

K.VINOD CHANDRAN, MARY JOSEPH

body2018
JUDGMENT : MARY JOSEPH, J. 1. This writ petition is filed by one Mrs.Thankam under Article 226 of the Constitution of India seeking the following reliefs : “i. A writ of habeas corpus or any other appropriate writ, direction or order directing the respondents to produce the person of the detenu Dini Babu, S/o. Thankam, Kalluvettamkuzhi Veedu, Kannammoola, Koyikkal Lane, Medical College P.O., Thiruvananthapuram District, PIN:695 011 before this Hon'ble Court and to set him at his liberty forthwith. ii. Declare that Ext.P1 detention order and the detention pursuant to the same is illegal and vitiated. iii. Such other orders as are deemed fit and proper in the circumstances of the case.” 2. The writ petitioner is a resident of Thiruvananthapuram District. She is aggrieved by the illegal detention of her son Dini Babu(referred to hereinafter as the detenu'). Pursuant to an order of detention No.S13-3028/2018 passed by the District Collector and District Magistrate, Thiruvananthapuram, the 2nd respondent herein on 26.02.2018, under the provisions of the Kerala Anti-Social Activities (Prevention) Act, 2007 (hereinafter referred to as 'the Act' for short), with effect from 01.03.2018. The copy of the said order is appended to this petition as Ext.P1. The contention of the writ petitioner was that the detenu was taken into custody pursuant to Ext.P1 order by the Sub Inspector of Police, Pettah Police Station, Thiruvananthapuram, the 5th respondent herein on 01.03.2018 from the Central Prison, Poojapura, Thiruvananthapuram, wherein he was in judicial custody. He was admitted in the Central Prison, Poojapura on the day itself and later on was transferred to Central Prison, Viyyur. At present, the detenu is undergoing detention in the Central Prison, Viyyur. At the time when the detenu was taken into custody, in compliance of Ext.P1 order of detention, he has been served with some records in connection with the detention and the copy of the grounds of detention in Malayalam, the true copy of which is appended to this petition as Ext.P2. In Ext.P1, the detaining authority has stated that the order was passed based on a report dated 21.01.2018 submitted before it by the 4th respondent, true copy of which is appended to this petition as Ext.P3. As revealed from Ext.P1, further reports had been called for from the 4th respondent, copies of which, dated 29.01.2018 and 17.02.2018 respectively have been appended to this petition as Exts.P4 and P5. 3. As revealed from Ext.P1, further reports had been called for from the 4th respondent, copies of which, dated 29.01.2018 and 17.02.2018 respectively have been appended to this petition as Exts.P4 and P5. 3. Aggrieved by the passing of Ext.P1 detention order, the writ petitioner who is none other than the mother of the detenu has approached this Court seeking release of her son from detention, which according to her is illegal and vitiated for procedural flaws and to set him at liberty. 4. Sri. O.V. Maniprasad, the learned counsel advanced arguments on behalf of the writ petitioner based on the following grounds: i. The detaining authority passed Ext.P1 order without applying its mind on vital and relevant materials, available to it. The detenu was arrested in connection with Crime No.166/2018 of Medical College Police Station, Thiruvananthapuram and was in judicial custody. The Bail Application moved by him in the crime was rejected by the Additional Chief Judicial Magistrate, Thiruvananthapuram. Though these facts have been made known to the detaining authority at the time of passing of Ext.P1 order, it failed to advert to those by applying its mind. The Additional Chief Judicial Magistrate in the order passed in bail application in crime No.166/18 had stated, chance is there for the detenu to repeat the offence, the true copy of which order is appended to this petition as Ext.P6. It is clear from Ext.P6 order that bail was rejected to the detenu by the Additional Chief Judicial Magistrate, to avoid chances of the detenu to be involved in crimes in future. Ext.P6 order having not been produced before the detaining authority, it had no opportunity to be convinced in mind on its basis that there was no chance for the detenu to be involved in commission of crimes. The non-consideration of Ext.P6 order by the detaining authority has a serious bearing while arriving at the subjective satisfaction. ii. The 5th accused in crime No.166/2018 was granted bail by this Court vide order dated 02.02.2018 in B.A. No. 737 of 2018, true copy of which is appended to this petition as Ext.P7. The non-consideration of Ext.P6 order by the detaining authority has a serious bearing while arriving at the subjective satisfaction. ii. The 5th accused in crime No.166/2018 was granted bail by this Court vide order dated 02.02.2018 in B.A. No. 737 of 2018, true copy of which is appended to this petition as Ext.P7. The detaining authority ought not to have been convinced from Ext.P7 order granting bail to the 5th accused in the aforesaid crime that there is a likelihood of the detenu also to be released on bail in future and that would let open avenues for him to be indulged further in antisocial activities. The reasoning of the detaining authority in Ext.P1 order to that effect is without basis. In fact, there was no likelihood for the detenu to be enlarged on bail, since this Court while granting bail to the 5th accused had elaborately dealt with the gravity of the acts alleged against the detenu. Therefore, the detaining authority ought not to have been convinced and conceived the matter in the manner as stated in Ext.P1 order. The 4th respondent failed to make available the entire records pertaining to the cases to be considered by the 2nd respondent, which ought to have been done by him as per the mandate of the provisions of the Act. No documents could be suppressed or withheld by the 4th respondent from the detenue in a matter of the nature and the detaining authority must have considered all materials and documents relating to the case, before passing the detention order. No discretion is conferred on the authority who recommended detention of the detenu to select or pick and choose some materials and placed those for reliance of the detaining authority. The detaining authority has to reach satisfaction not only objectively but also subjectively. iii. A constitutional as well as statutory obligation is vested with the Government to consider the representation of the detenu in view of the mandate under Clause (5) of Article 22 of the Constitution of India and sub-section (2) of Section 7 of the Act. In the case on hand a representation was forwarded to the Advisory Board, which in turn was sent to the Government, the 1st respondent herein, the copy of which is appended to this petition as Ext.P9. The representation remained unconsidered. In the case on hand a representation was forwarded to the Advisory Board, which in turn was sent to the Government, the 1st respondent herein, the copy of which is appended to this petition as Ext.P9. The representation remained unconsidered. The non-consideration of the representation of the detenu by the Advisory Board and the Government is violative of the statutory provision and the mandate under Article 22 of the Constitution of India. iv. Criminal cases, wherein the detenu was allegedly involved, ought not to have been considered by the detaining authority for declaring the detenu as known rowdy. None of the cases alleged are liable to affect the maintenance of public order and on its sole basis the power of the detaining authority under the Act to pass detention order is not liable to be invoked. The offences involved in the criminal cases referred to in Ext.P1 order are without much gravity and are mere personal disputes. Therefore, Ext.P1 order passed purely on the basis of the criminal cases referred therein will not sustain legally and factually. 5. Addressing arguments based on the grounds as aforesaid, the learned counsel canvassed for release of the detenu from illegal detention by setting aside Ext.P1 order. 6. Per contra the learned public prosecutor contended that interference with Ext.P1 order is totally unwarranted, since it was passed by the detaining authority by applying its mind to the materials made available to it and thereby arriving at a satisfaction objectively and subjectively. According to him, the representation given by the detenu to the Advisory Board was forwarded to the Government and had been considered before passing Ext.P1 order. According to him, none of the grounds based on which Ext.P1 order was sought to be set aside will sustain and the order is only liable to be confirmed. 7. It has been contended by the 1st respondent in its counter affidavit filed in the writ petition that the three cases referred therein are sufficient to reach an objective satisfaction that the detenu is continuing as a known rowdy causing threat or damage to the society. According to him, all procedural formalities as laid down under various provisions of the Act are complied with and the Government issued the order of approval within the time frame. According to him, all procedural formalities as laid down under various provisions of the Act are complied with and the Government issued the order of approval within the time frame. According to him the detenu has been apprised of his right to make representation before the Advisory Board and the Government and the representations moved by exercising the right have been considered by them. When placed before the Advisory Board, it was also convinced of the sufficiency of the cause for detaining the person of the detenu and the order of detention was confirmed under Section 10(4) of the Act by the Government vide G.O.(Rt) No.1207/2018/Home dated 26.04.2018 and is not liable to be set aside. 8. In the counter affidavit filed by the Additional Director General of Prosecution and the Additional State Public Prosecutor on behalf of the 2nd respondent, elaborate discussion was made regarding the cases in which the detenu was charge-sheeted, the service of copy of the order of detention and other relevant materials containing the necessary information of the allegation against him and the circumstances which led to the passing of the order of detention. According to him, based on the information he was convinced of the likelihood of the detenu to be involved in anti-social activities harming the peace and order of society and accordingly the order of detention was issued. It was pleaded by him for the reasons that the writ petition deserves to be dismissed. 9. The 4th respondent in his counter affidavit has also narrated the various crimes registered against the detenu involving serious offences for which he was also charge-sheeted and taken consideration while proposing to detain him. He had also dealt with the supply of relevant documents pertaining to the criminal activities based by him while proposing the detention. According to him, in the order the right to make representation before the Advisory Board and the Government was clearly mentioned and the affidavit was concluded by him by stating that the on-going preventive detention is in the interest of maintenance of public order, safety and peace and in tune with the legal provisions of the Act. Accordingly, he pleaded for dismissal of the writ petition. 10. Accordingly, he pleaded for dismissal of the writ petition. 10. In the backdrop of the conflicting contentions raised by the parties to the writ petition, we have a glance at Ext.P1 order under challenge to see whether it is vitiated in any manner as contended by the writ petitioner. Ext.P1 unveils the factum that an earlier order of detention No.C.C.95/S 13/Camp/2015 was issued by the 2nd respondent against the detenu on 22.08.2015 on the basis of Crime Nos.1271/2014 and 573/2015 of Pettah Police Station and Crime No.1777/2014 of Medical College Police Station. The order was executed on 27.08.2015 and by order No.(R.T) 2726/2015/Home, the Government had approved the same. By judgment dated 18.01.2016 in W.P(Crl.) No.483/2015(S), the order of detention was set aside by this Court. Thereafter, on the basis of the further report that the detenu by his involvement in Crime Nos.966/2016 and 1323/2016 of Pettah Police Station and Crime No.2052/2017 of Peroorkkada Police Station is likely to create law and order problems causing disturbance to the public morality, Ext.P1 order of detention was issued against him for the second time. 11. Crime No.966/2016 was registered by the Pettah Police Station on the basis of the statement of one Mrs. Beena that out of previous animosity of the detenu for murdering his younger brother at 11 p.m. on 05.08.2016, the former conspired with others, trespassed into her house and chopped herself and her husband with a chopper severally and inflicted injuries on various parts of their body and thereby attempted to kill them. The investigation was concluded in the case and a charge sheet was prepared and laid before the Additional Chief Judicial Magistrate, Thiruvananthapuram. The Additional Chief Judicial Magistrate committed the case to the Court of Sessions, Thiruvananthapuram which took it on file as S.C.No.992/2017 and is pending trial there, at present. 12. Case No.1323/2016 was registered on the basis of the First Information Statement lodged by one Mr. Jose, S/o.Kochappi @ Anil Kumar on 07.10.2016. The detenu is the 9th accused in the crime. 12. Case No.1323/2016 was registered on the basis of the First Information Statement lodged by one Mr. Jose, S/o.Kochappi @ Anil Kumar on 07.10.2016. The detenu is the 9th accused in the crime. The allegation against him was that out of his previous animosity, himself as the mastermind, conspired with others severally at the house of CW44, for being in cordial terms with the culprits, who killed his brother, formed themselves into an unlawful assembly and with the common object formed in the assembly to kill the defacto complainant, armed with deadly weapons reached in front of the Corporation Office situated in Kannanmoola Kolloor Road, and committed the murder of Vishnu, son of the defacto complainant and also attempted to kill his wife and her sister by chopping them. The investigation in the case was completed with the detenu in custody and he was charge-sheeted on 23.01.2017 by fling final report before the Additional Chief Judicial Magistrate for the offences punishable under Sections 120(B), 143, 147, 148, 149, 324, 326, 212, 203, 307 and 302 IPC. The final report was received on file on 23.01.2017 and was committed to the Court of Sessions which received it on file as S.C.No.883/2017 and that is pending trial therein. The victims being Scheduled Caste/Scheduled Tribe, the Assistant Commissioner, Sangumugham has taken charge of further investigation on that line. 13. Crime No.2052/2017 was registered on the basis of the statement lodged by one Mr.Rajesh on 16.10.2017. The allegation against the detenu was that himself along with three others restrained the defacto complainant, fisted him on the left hand and left chest and while evading the blow, he was kicked on his abdomen and abused and thereby committed the offences punishable under Sections 294(b), 341, 323 and 506(1) IPC. The investigation in the crime was concluded and a final report, charge sheeting the accused was laid before the Judicial First Class Magistrate Court-XI, on 21.10.2017 for the offences as aforesaid. The case was taken on file by the Magistrate as C.C.No.3078/2017 and is pending trial, now. 14. Apart from the crimes as stated above, the detenu was also included in the rowdy history sheet and under surveillance. Despite the initiation of the proceedings against him under Sections 110 and 107 Cr.P.C and issuance of an order of detention against him, he continued to be indulged in commission of crimes. 14. Apart from the crimes as stated above, the detenu was also included in the rowdy history sheet and under surveillance. Despite the initiation of the proceedings against him under Sections 110 and 107 Cr.P.C and issuance of an order of detention against him, he continued to be indulged in commission of crimes. The criminal status of the detenu was enquired into and a report dated 29.01.2008 was obtained, wherein the detenu was reported as found travelling with deadly weapons and a country gun in a car and that led to the registration of Crime No.166/2018. The same was also informed to the detaining authority. It is reported in Ext.P1 that the detenu when applied for bail in the aforesaid crime was declined bail by the court and later on the 5th accused in the said crime had been granted bail. As made clear from Ext.P1, on apprehension of the likelihood of the detenu to obtain bail in Crime No.166/2018 that he was requisitioned to be kept under illegal detention. 15. The documents which were made available to the detaining authority as disclosed from Ext.P1 include: (i) Reports dated 20.01.2018, 17.02.2018 and 29.01.2018. (ii) First Information Reports. (iii) Enquiry reports. (iv) Rowdy History sheet (v) Previous order of preventive detention, order approving the order of detention by the Government. (vi) Order granting bail in Crime No.1323/2016. (Viii) Order of this Court granting bail in B.A No.737/2018 to Kannan @ Pradeep, accused No.5 in Crime No.166/2018. It has also been specifically stated in Ext.P1 that Crime No.166/2018 being a crime registered suo motu by the Police was avoided to be considered as a material to base issuance of Ext.P1 order. 16. The offences involved in the crimes as aforesaid undoubtedly would come within the purview of Chapter XVI, XVII and XXII IPC and are also liable to invite punishment of imprisonment for 1 year to death/life imprisonment. The authority was convinced that the detenu is liable to be listed as a 'known rowdy' as meant under Section 2(p)(iii) of the Act. It is clear on a scrutiny of Ext.P1 that the detaining authority is undoubtedly an officer empowered under Section 3 of the Act. The authority was convinced that the detenu is liable to be listed as a 'known rowdy' as meant under Section 2(p)(iii) of the Act. It is clear on a scrutiny of Ext.P1 that the detaining authority is undoubtedly an officer empowered under Section 3 of the Act. Under Section 3 of the Act, not only the Government but also the District Magistrate having jurisdiction under the authority of the Government is empowered to direct the detention of a known goonda or known rowdy, if he is satisfied in mind from the information furnished to it by a police officer, of and above the rank of a Superintendent of Police regarding his anti-social activities, to prevent the commission thereof within the State of Kerala. Sub-section (2) and (3) of Section 3 provides for the power to be exercised by the Government through the District Magistrate directing the latter by order in writing to exercise the power of the authorised officer under sub-section (1) in respect of residents and non-residents who have been to his satisfaction is indulging in or about to indulge or abet any anti-social activities within such jurisdiction. If an order is made it shall forthwith be reported to the Government and the Director General of Police, Kerala along with a copy of the order and supporting records which he finds having a bearing on the matter. The order unless approved by the Government or by the Secretary, if generally authorised to do so by the Government in the meantime will have force only for a period of 12 days from the date of detention excluding public holidays. 17. Section 7 of the Act provides that the officer arresting a person pursuant to a detention order shall read over the order and shall also furnish a copy of the order to him. The grounds of detention, specifying the offences for which the detenu was charge-sheeted, with copies of relevant documents based on which he was enlisted as 'known goonda' or 'known rowdy' and the circumstances based on which the issuance of an order of detention was necessitated shall be furnished to him as far as practicable and as soon as possible, within 5 days of his detention and shall inform in writing under acknowledgment, his right to make representations to the Government and the Advisory Board against the order of detention. The authority is not bound to disclose information liable to reveal identity of the confidential source or that is liable to affect the internal or national security. The Superintendent of Jail where the detenu is confined shall afford all reasonable opportunity to him to consult with a lawyer and to avail assistance from him in the matter of making representation to the Government or to the Advisory Board. Merely because one or more grounds stated as reasoned the issuance of an order of detention has become vague, non-existent, irrelevant or invalid, that will not invalidate an order, if the authority issuing it is convinced and justified from the minimum valid grounds available that the detenu is liable to be classified as a known goonda or known rowdy. 18. Therefore, the authority must be satisfied from the information furnished to him that at least minimum conditions are existing for classifying a person as a 'known goonda' or 'known rowdy'. Section 7 in its sub-section(2) mandates that copies of relevant documents and such other materials relating to the detention shall be furnished to the detenu. In this connection Section 2(a) of the Act is apposite extraction hereunder : “2. Definitions.- In this Act, unless the context otherwise requires,- (a) “anti-social activity” means acting in such manner as to cause or is likely to cause, directly or indirectly, any feeling of insecurity, danger or fear among the general public or any section thereof, or any danger to the safety of individuals, safety of public, public health or the ecological system or any loss or damage to public exchequer or to any public or private property or indulges in any activities referred in clauses (c), (e), (g), (h), (i), (l), (m), (n), (q) (qb) and (s) of this section;” 19. Therefore, anti-social activity as defined under the Act means acting in a manner to cause or is likely to cause directly or indirectly any insecure feeling, danger or fear among the general public or any section of the general public or to cause any danger to the safety of individuals, safety of public, public health or the ecological system or to cause any loss or damage to public exchequer or to any public or private property or to indulge in any activities like boot legging, counterfeiting, causing depredation of environment, pirating digital data and copy right, drug-offending, goondayism, hawala racketeering, hired ruffianism, immoral trafficking, loan sharking and involving in money chain circular scheme and money lending respectively dealt with under sub-sections (c), (e), (g), (h), (i), (l), (m), (n), (q) (qb) and (s) of Section 2 of the Act. 20. 'Giving such materials' with reference to his activities referred to in sub-section (1) of Section 7 means, furnishing of materials relating to any activities of the nature with reference to which the detenu has been included in the list of 'known goonda' or 'known rowdy'. What is meant by a known goonda is described in Section 2(o), which reads as follows:- “known goonda” means a goonda who had been, for acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (i) found guilty, by a competent court or authority at least once for an offence within the meaning of the term 'goonda' as defined in clause (j) of section 2; or (ii) found in any investigation or enquiry by a competent police officer, or other authority or competent court on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, to have committed any act within the meaning of the term 'goonda' as defined in clause (j) of section 2. …........” Section 2(p) of the Act describes a 'known rowdy' in the following way: “known rowdy” means any person, who had been, by reason of acts done within the previous seven years as calculated from the date of the order imposing any restriction or detention under this Act,- (i) made guilty, by a competent court at least once for an offence of the nature under item (i) of clause(t) of section 2 or any offence notified as such under the said clause; or (ii) made guilty, by a competent court at least twice for any offence of the nature mentioned under item (ii) of clause(t) of section 2 or any offence notified as such under the said clause; or (iii) found on investigation or enquiry by a competent police officer or other authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction to have committed any offence mentioned in clause(t) of section 2;.......” 21. Therefore, conditions for classifying the person concerned as a 'known goonda' or known rowdy should exist and while executing the order of detention, the detenu shall be put to notice of the order: (i) by reading its contents to him by the arresting officer then and there. (ii) by serving a copy of the order to him. (iii) by furnishing him the grounds of detention, with specific reference to the instances of offences, with copies of relevant documents based on which detention was proposed, within five days of his detention. (iv) by furnishing him of the materials relating to the activities of the person, on the basis of which his detention has been found necessary, as far as possible not later than five days from the date of detention. (v) by informing him in writing of his right to make representations to the Government and the Advisory Board against his detention with due acknowledgment from him for having done so. (vi) by affording him with reasonable opportunity by the Superintendent of Jail where the person is detained to consult a lawyer and avail assistance in the matter of making representation against the detention order to the Government or the Advisory Board. Therefore, without being satisfied with the conditions for categorising a person as a 'known goonda' or 'known rowdy' and without the conditions as aforesaid being satisfied, a detention order, if executed, would be illegal. Therefore, without being satisfied with the conditions for categorising a person as a 'known goonda' or 'known rowdy' and without the conditions as aforesaid being satisfied, a detention order, if executed, would be illegal. 22. It is for the Government to constitute one or such number of Advisory Boards as it feels necessary for the purpose of the Act and specify its territorial or functional jurisdiction. A Sitting Judge or a retired Judge of the High Court shall be the Chairman of the Board and the two members to constitute the Board shall be the persons qualified under the Constitution of India to be appointed as Judge of the High Court. It is for the Government to prescribe the salary, allowance, tenure and service conditions of the Chairman and members of the Advisory Board. 23. As provided under Section 9 of the Act, when an order of detention was passed, the Government shall place the grounds based on which the order has been issued and the representation if any made by the detenu before the Advisory Board within three weeks from the date of detention and the report of an authorised officer in a case where the order of detention has been made by him. 24. Section 10 of the Act provides for the procedure to be followed by the Advisory Board. The Advisory Board shall consider the reference and other materials produced along with it, and if found necessary, shall call for further information from the Government, or any other person called for the purpose through the Government or from the person concerned or either suo motu or at the desire of the person, may also hear him in person and shall prepare a report specifying separately its opinion about the sufficiency of cause behind passing the order directing detention of a person concerned, and submit the same to the Government within nine weeks from the date of detention. 25. If the members of the Advisory Board differs in their opinion, the opinion of the majority of the members shall be deemed to be the opinion of the Board. If a member is absent, it shall not invalidate the decision of the Board. 26. The person against whom an order of detention has been made under this Act, was not permitted to claim for a representation by a legal practitioner as of right before the authorities on his behalf. If a member is absent, it shall not invalidate the decision of the Board. 26. The person against whom an order of detention has been made under this Act, was not permitted to claim for a representation by a legal practitioner as of right before the authorities on his behalf. The Superintendent of Jail wherein he had been ordered to be detained, if found necessary, could afford assistance to prepare the representation to be preferred under sub-section(2) of Section 7 of the Act before the authorities concerned. The proceedings of the Advisory Board and its report except the opinion rendered by it, shall be confidential. The Board may permit in appropriate cases, the assistance of a legal practitioner. When the Advisory Board finds sufficient cause for detention of a person, it may report the same to the Government and the latter may confirm the detention order, and caused it to be continued for such period as it thinks fit and on finding sufficient cause as lacking, it shall revoke the order and thereby cause the detenu to be released forthwith. In view of Section 11 of the Act, the fact that the person to be detained or the place of detention of such person is within the State, will not invalidate or make it non-operative for the reason of himself being outside the limits of the territorial jurisdiction of the officer making the order. 27. A detention order passed against a person under the Act first in point of time and confirmed by the Government under Section 10 of the Act may be extended up to six months from the date of detention and the subsequent order may be extended up to a maximum period of one year. The Government is empowered under Section 13 of the Act to revoke or modify the detention order at any time. The Government is empowered under Section 13 of the Act to revoke or modify the detention order at any time. The revocation or expiry of an order of detention against a person will not be a bar against issuance of an order of detention for a second time, if the detenu is found to have indulged in offences involving activities as described under the Act and when considered along with the previous known facts against him is likely to create an apprehension for the Government or the authorised officer that he would indulge in or promote or abet anti-social activities and when the procedural errors or omissions, for which reasons, the first order of detention was revoked were rectified with regard to the subsequent order. 28. Therefore, ample power is vested with the Government under the Act in the matter of passing orders of detention against a person upon satisfaction in mind on the basis of relevant information and materials furnished that he is indulged in or about to indulge or abet unlawful activities likely to be detrimental to the societal interests, public peace and public tranquility. The Act through its relevant provisions also direct the Government and any other authority as empowered by the Government, while issuing an order of detention, to be vigilant and reasonable in the matter of compliance of the mandatory requirements. Necessary safeguards are provided under the Act to curb unlawful detentions. The Constitution under Article 19(1) directs the State to guarantee to its citizen the fundamental right to move freely to his choice subject to restrictions reasonably provided there under. It further guarantees protection to a person against unlawful arrest and detention. It provides for the right of the person detained in custody to be informed of the grounds of such detention and right to make representation against the order of detention issued against him. The Constitution in Clause (5) of Article 22 provides : “(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.” The Constitution does not specify the authority before whom representation is to be preferred by the detenu. But, the Act through Section 7 provides for the authorities before whom the detenu is entitled to make representations and thereby secure his protection against unlawful detention. It directs the detenu to make representation before the Advisory Board and the Government against the order of detention passed against him and consideration of the same by each authorities. 29. With the background of the Constitutional mandates and the relevant provisions of the Act as aforesaid, we ventured to see whether any of the contentions raised by the writ petitioner, who is the mother of the detenu would sustain and Ext.P1 order under challenge issued by the 2nd respondent against the detenu is vitiated in any manner. 30. As stated earlier, the proposal for issuance of an order of detention of the detenu has come from the office of the Deputy Commissioner of Police (Law and Order), Thiruvananthapuram City, the 4th respondent in this writ petition. The detenu was found to have involvement in cases charge-sheeted pursuant to registration of crimes against him as 1271/14 and 153/15 of Pettah Police Station and 1777/14 of Peroorkkada Police Station and vide order No.C.C.95/S13/Camp/2015 he was directed to be detained and the order was also confirmed by the Government vide G.O. No.2726/2015/Home. The mother of the detenu challenged the order in W.P.(Crl.) No.483/2015 before this Court and by judgment dated 18.01.2016, the order of detention was set aside and he was set at liberty. After getting released from detention, the detenu got indulged in Crime Nos.966/16 and 1323/16 of Pettah Police Station and Crime No.2052/17 of Peroorkkada Police Station registered for the offences, commission of which allegedly involved therein are even liable to be punished with death or imprisonment for life. All the cases referred had been investigated by the respective police and the detenu had been charge-sheeted for the offences alleged against him as per the aforesaid crimes. All the cases referred had been investigated by the respective police and the detenu had been charge-sheeted for the offences alleged against him as per the aforesaid crimes. In the said backdrop that the Deputy Commissioner of Police (Law and order), Thiruvananthapuram City was convinced in mind about the necessity to detain him and sent proposal along with a report detailing the crimes registered against him preceding to the issuance of the first order of detention, the crimes registered succeeding to the issuance of the said order of detention, the particulars of the order that set aside the order of detention issued first in point of time, the facts and circumstances which formed basis for the registration of the crimes, the offences involved therein, and the offences for which he was charge-sheeted. He had also been furnished with copies of the materials referring the details. Smt. Thankam, the writ petitioner, had not raised any dispute about the issuance of the information and furnishing of materials relevant, immediately after serving the order of detention upon the detenu. Therefore, to that extent, there had been compliance of the statutory requirements as mandated by Section 7 of the Act. The officers who had proposed detention of the detenu and issued Ext.P1 order are indisputably, authorities empowered under the Act to do so. 31. The main challenge of the writ petitioner is against the non-consideration of the representation made by the detenu to the Advisory Board on 11.04.2018 and the representation nil dated made by his mother to the Government, true copies of which have been appended to this writ petition as Exts.P9 and P11. In the representations, it has been specifically stated by the detenu and his mother that Ext.P1 order was vitiated for want of compliance of sub-section(2) of Section 7 of the Act. It has been alleged that the detenu was not made aware of his right to make representation before the Government and the Advisory Board. Even at the time when the first order of detention was set aside by this Court vide judgment dated 18.01.2016, this Court had elaborately discussed on the reason for which that order was vitiated. This Court had pointedly detailed therein the purpose for which Section 7 was incorporated in the Act and its contemplation. 32. Even at the time when the first order of detention was set aside by this Court vide judgment dated 18.01.2016, this Court had elaborately discussed on the reason for which that order was vitiated. This Court had pointedly detailed therein the purpose for which Section 7 was incorporated in the Act and its contemplation. 32. A glance at Ext.P1 order in the backdrop of the challenge raised by the writ petitioner made it clear that the detenu was not informed by the authority concerned that he has got a right under the Act to make representations before the Advisory Board and the Government. 33. The relevant part of Ext.P1 order is extracted hereunder : xxx xxx xxx 34. What had been informed by the portion extracted above was that objection or grievance if any is there for the detenu against the order of detention, representations could be preferred before the Government and the Advisory Board. From the wordings in the extract it is unambiguous that the detenu was not made convinced about his right under the Act to address both the Advisory Board and the Government against the order of detention. 35. In Gracy v. State of Kerala [ AIR 1991 SC 1090 ], a representation made by the detenu to the Advisory Board was considered by it and opined that the preventive detention was justified on sufficient cause. The Central Government passed an order confirming the detention. A question was raised therein that, the representation of the detenu having not been considered independently by the Central Government whether the order of detention would be violative of the guarantee provided under Article 22(5) of the Constitution of India. A contention was taken in the case on behalf of the respondent therein that since representation was not addressed to the Government, it has no obligation as such. The Court held : “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.” 36. The effect of Gracy supra was considered by a Bench of 3 Judges in R.Kesava v. M.B. Prakash [ AIR 2001 SC 301 ]. In the said case, the detenu had made a representation to the Advisory Board and the State Government confirmed the detention without independently considering the representation. The specific contention of the respondent therein was that the representation was not forwarded by the Advisory Board to the State Government and therefore, it did not consider the same. The court held in the case : “A perusal of the aforesaid Section and other relevant provisions of the Act makes it abundantly clear that no duty is cast upon the Advisory Board to furnish the whole of the record and the representation addressed to it only to the Government along with its report prepared under Section 8(c) of the Act. It may be appropriate for the Board to transmit the whole record along with the report, if deemed expedient but omission to send such record or report would not render the detention illegal or cast an obligation upon the appropriate government to make inquiries for finding out as to whether the detenu has made any representation, to any person or authority, against his detention or not. We are of the opinion that in Gracy's case (supra) it was not held that any such duty was cast upon the Board but even if the observations are stretched to that extent, we feel that those observations were uncalled for in view of the scheme of the Act and the mandate of the Constitution.” The Court further held : “We are satisfied that the detenu in this case was apprised of his right to make representation to the appropriate government/authorities against his order of detention as mandated in Article 22(5) of the Constitution. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. Despite knowledge, the detenu did not avail of the opportunity. Instead of making a representation to the appropriate government or the confirming authority, the detenu chose to address a representation to the Advisory Board alone even without a request to send its copy to the authorities concerned under the Act. In the absence of representation or the knowledge of the representation having been made by the detenu, the appropriate government was justified in confirming the order of detention on perusal of record and documents excluding the representation made by the detenu to the Advisory Board. For this alleged failure of the appropriate government, the order of detention of the appropriate government is neither rendered unconstitutional nor illegal.” 37. This Court had considered in Saraswathy V. State of Kerala and another [ 2012 (1) KHC 432 (DB)] the effect of non-consideration of a representation addressed by the detenu to the Advisory Board, which was also forwarded to the Government and held : “11. In the facts of this case, while we cannot accept the contention of the petitioner that the Advisory Board has not disposed of the representation and therefore, the continued detention is bad, we are of the view that the continued detention of the detenu is illegal for the reason that the representation dated 15.09.2011, which was before the Government admittedly was not considered by the Government.” 38. The specific allegation of the writ petitioner was that representations have been made by the detenu before the Advisory Board and by herself before the Government. The copy of the representations are produced along with writ petition as Exts.P9 and P11. 39. Paragraph 10 of the counter affidavit of the 1st respondent being relevant in the context is extracted hereunder : “10. With regard to the contention of informing the detenu about his constitutional right to file representation to the Government and to the Chairman Advisory Board, KAA(P)A it is submitted that, in the detention order, in the last paragraph itself, it is explicitly stated that the detenu had the right to submit representation, complaint or objection, if any, against the detention order to the Government and the Advisory Board. Accordingly, the petitioner, the mother of the detenu, had submitted representation to this respondent and the detenu had submitted representation to the Chairman Advisory Board. Accordingly, the petitioner, the mother of the detenu, had submitted representation to this respondent and the detenu had submitted representation to the Chairman Advisory Board. The contention on the contrary is untenable.” Therefore, admittedly representations have been preferred before the Advisory Board and the Government. According to the 1st respondent, those representations have been duly considered by it and the Advisory Board and therefore, the contention of the writ petitioner in that respect is untenable. In the context Ext.P10 appended to the writ petition is relevant. It is nothing but a copy of an Order No.G.O.(Rt) No. 1207/2018/Home dated 26.04.2018 issued by the Government in the case on hand. It is reported therein that the order of detention and the grounds of detention with the copies of the documents in support of the grounds were served on the detenu at the time of arrest. It has also been stated therein that the order of detention was found justified and the same has been approved by the Government under Section 3(3) of the Act, vide Order No.Home-SSA5/59/2018-Home dated 13.03.2018. As required under Section 9 of the Act, the case of the detenu was referred to the Advisory Board as per Government letter No.Home-SSA5/59/2018- Home dated 20.03.2018 to the Secretary, Advisory Board, KAA(P)A, Ernakulam. The detenu was heard in person on 11.04.2018. The relevant records were perused and the Advisory Board vide its report in RC No.17/2018/KAAPA dated 18.04.2018 held that sufficient cause was there to detain the detenu. Accordingly, after having carefully examined the case, the Government confirmed the order of detention under Section 10(4) of the Act and ordered the same to be continued for a period of six months with effect from the date of detention. 40. The contention of the writ petitioner contextually that Ext.P9 representation made by the detenu to the Advisory Board was not considered by it is tenable when viewed in the backdrop of Ext.P10 order, which is referred to and discussed with hereinabove. It is also disclosed from Ext.P10 that Ext.P11 representation forwarded by the writ petitioner to the Government was also not considered by it. Ext.P10 order is silent regarding the submission of the representation by the writ petitioner herein and the detenu repsectively before the Government and the Advisory Board and its consideration by them. 41. It is also disclosed from Ext.P10 that Ext.P11 representation forwarded by the writ petitioner to the Government was also not considered by it. Ext.P10 order is silent regarding the submission of the representation by the writ petitioner herein and the detenu repsectively before the Government and the Advisory Board and its consideration by them. 41. As already stated, the right of the detenu to make representation after an order of detention being served upon him is not made known to him vide Ext.P1 order of detention. What was stated in Ext.P1 was that the detenu could file objection or complaint if any, if aggrieved by the order of detention before the Advisory Board and the Government. What is contemplated by sub-section (2) of Section 7 of the Act was to apprise the detenu in writing under acknowledgment, about his right to address the authorities as abovementioned. When such a right is apprised in writing with acknowledgment, it is for the detenu to decide whether to make representation before any or both of the authorities in exercise of the right. In the case on hand though the detenu has not been apprised of his right in specific terms as mandated by sub-section (2) of Section 7 of the Act, responding to the information furnished in Ext.P1, representations as Exts.P9 and P11 had been preferred by himself and his mother on his behalf before the Advisory Board and the Government as contemplated under sub-section (2) of Section 7 of the Act. Mention having not been made in Ext.P10 by the Government that such representations have been considered and acted upon by it and the Advisory Board, the contention of the writ petitioner that Ext.P1 order was vitiated for the reason is forceful and tenable. Since representations have been forwarded separately to the Advisory Board and the Government by the affected party as Exts.P9 and P11, the authorities concerned are under obligation under Section 7 of the Act to consider and act upon those independently. Before issuing Ext.P10 order, Exts.P9 and P11 ought to have been considered by the respective authorities, i.e., the Advisory Board and the Government. Before issuing Ext.P10 order, Exts.P9 and P11 ought to have been considered by the respective authorities, i.e., the Advisory Board and the Government. As mandated by Section 9 of the Act, on making an order of detention under the Act, the Government shall, within three weeks from the date of detention of the person, place the grounds on which the order of detention has been made and the representation, if any made by the person affected by the order and the report of an authorised officer in case the order of detention has been made by him. Therefore, if a representation is preferred before the Government alone by the detenu, the Government shall place the same with the Advisory Board together with the grounds on which the order has been bared within three weeks from the date of detention and it shall be considered by it. 42. Apart from all the above this is a case wherein the recalcitrant attitude of the authorities need a special note hereunder. This is a case wherein an earlier order of detention was passed by the very same authority against the very same detenu. That order was taken up in challenge in W.P.(Crl) No.483 of 2015 and it was set aside by a Division Bench of this Court for reasons identical to those for which Ext.P1 order under challenge herein is alleged as vitiated. This Court had pointed out in the judgment, the error in the order which vitiated it and clarified the manner in which the authorities have to transact on a representation when being made to it by a detenu. The said case is reported as Thankom v. State of Kerala [ 2017 (1) KLT 30 ] and the dictum contained in paragraph 11 therein reads : “11. Unlike an order under Section 15(1) of the KAAPA, the detenu will not be given notice before an order under Section 3(1) is passed. A person who has been detained under Section 3(1) of the KAAPA does not get any opportunity before his arrest. His right accrues only on his arrest, at which point of time, the officer arresting him shall read out the detention order to him and give him a copy of such order (see Section 7(1) of the KAAPA). A person who has been detained under Section 3(1) of the KAAPA does not get any opportunity before his arrest. His right accrues only on his arrest, at which point of time, the officer arresting him shall read out the detention order to him and give him a copy of such order (see Section 7(1) of the KAAPA). The grounds of detention along with copies of the relevant documents shall be furnished to the detenu as soon as possible and, at any rate, within five days of his detention. A detenu under the Preventive Detention Laws would be arrested and detained abruptly. Unlike in the trial of a criminal case, the person concerned who has been detained under the KAAPA would not get much opportunity to mould his defence and to put forward his arguments. A detenu's right is confined to make a representation to the Government as well as to the Advisory Board. The Advisory Board shall also hear the detenu if he expresses a desire to be heard in person. Before the Government, the detenu will not get an opportunity to be heard in person while considering the representation. The rights of the detenu would be protected by providing a meaningful opportunity to him to make representations as provided under Section 7(2) of the KAAPA. The detenu must be informed of his right in writing and under acknowledgment. The detenu should not be given an information which is capable of having different interpretations. The information supplied to the detenu should be correct, specific and beyond any suspicion. The wording of Section 7(2) and particularly the word “and” occurring in the expression “right to represent to the Government and before the Advisory Board” makes the position clear that the Legislature intended that the detenu should be informed that he has distinct rights of making a representation to the Government as well as to the Advisory Board. The detaining authority cannot substitute the word “or” for the word “and” occurring in Section 7(2) of the KAAPA. The information supplied in Ext.P2 representation is contrary to the information which is contemplated under Section 7(2) of the KAAPA. The continued detention of the detenu is, therefore, vitiated.” 43. The detaining authority cannot substitute the word “or” for the word “and” occurring in Section 7(2) of the KAAPA. The information supplied in Ext.P2 representation is contrary to the information which is contemplated under Section 7(2) of the KAAPA. The continued detention of the detenu is, therefore, vitiated.” 43. It is pertinent to note from the impugned Ext.P1 order that the authorities failed to transact in compliance with the relevant provisions of the Act and in the manner as directed by a Division Bench of this Court vide judgment dated 18.01.2016. In Exts.P9 and P11 representations, the detenu as well as the writ petitioner had contended elaborately about the flaws in the various acts that led to the issuance of Ext.P1 order and pleaded for declaring it as legally unsustainable and to set him at liberty. 44. When an order is passed to restrict a person's Constitutionally guaranteed right of freedom or movement by a procedure established by law, like the Act dealt with herein, the authorities ought to have ensure strict compliance thereof without deviating there from, even in minute aspects. The case on hand is a clear one of violation of the mandatory requirements for the second time by the authorities despite elaborating the procedure to be followed by them by a court of law. Legal action if any, proposed to be taken under the Act, must be taken strictly in conformity to the procedures prescribed therein and with a view to enforce the same. Otherwise, it would remain as a paper right and would be a mockery from the point of view of the public who repose much confidence in the institution that exists to maintain justice. Undoubtedly it would defeat the reliability of the citizens on the institution. It would tend to view the authorities with a suspicious eye. If the procedures prescribed are complied with in its true spirit, it would safeguard the authorities as well as the detenu and balance the power of the authority and the protection of the detenu against the illegal detention. Such action would be free from criticism from any corner. The authorities must see that action taken by them would be in strict conformity to the procedural mandates and is meant for enforcement. In the result, Ext.P1 order No.S-13-3028/2018 passed by the District Magistrate, Thiruvananthapuram on 26.02.2018 under Section 3(1) of the KAA(P)A is set aside. Such action would be free from criticism from any corner. The authorities must see that action taken by them would be in strict conformity to the procedural mandates and is meant for enforcement. In the result, Ext.P1 order No.S-13-3028/2018 passed by the District Magistrate, Thiruvananthapuram on 26.02.2018 under Section 3(1) of the KAA(P)A is set aside. The authority concerned is directed to release the petitioner from detention forthwith, unless his confinement is required in any other case. The Registry shall communicate the gist of the order to the Superintendent of Jail, Central Prison, Viyyur, Thrissur. Sd/- MARY JOSEPH JUDGE Vinod Chandran, J : 45. I have carefully gone through the judgment of my learned companion Judge and I perfectly agree with the conclusion reached that the detenue has to be released. However, with due respect, I have to distance myself from the reasoning adopted to arrive at that conclusion. I choose to tread a different path paved with a different reasoning to arrive at the same conclusion. 46. The law and the facts of the case have been elaborately discussed by my learned companion Judge and it requires no reiteration. I speak only on the issue whether the representation filed before the Advisory Board has to be considered by the Government. A Division Bench of this Court (in which I was also a member) has already held in Joseph Sebastin v. State of Kerala [ 2018 (3) KHC 889 (DB)] that there is a definite mandate to the Government to consider a representation of the detenu, which cannot be brushed aside on the mere premise that the detenu chose not to file a representation before the Government. I find that even earlier another Division Bench had spoken in a similar fashion as is seen from Saraswathy v. State of Kerala & Anr. [ 2012 (1) KHC 432 ]. Both the aforesaid Division Benches had looked into two decisions of co-ordinate Benches of the Hon'ble Supreme Court in Smt.Gracy v. State of Kerala & Anr. [1991 KHC 918] and R.Keshava v. M.B. Prakash & Ors. [ (2001) 2 SCC 145 = 2001 KHC 1710]. 47. The three Judge Bench of the Supreme Court in Smt.Gracy considered the issue whether the requirement of consideration of representation by Government is dispensed with when the detenu's representation, instead of being addressed to the Government is addressed only to the Advisory Board. [ (2001) 2 SCC 145 = 2001 KHC 1710]. 47. The three Judge Bench of the Supreme Court in Smt.Gracy considered the issue whether the requirement of consideration of representation by Government is dispensed with when the detenu's representation, instead of being addressed to the Government is addressed only to the Advisory Board. It was held that the nature of duty imposed on the detaining authority under Article 22(5) in the context of extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary. It was further opined that it is especially so since the liberty involved is of a detenu and not a free agent. Relying on Article 22(5), the Hon'ble Supreme Court spoke thus: “Article 22(5) speaks of the detenu's representation against the order, and imposes the obligation on the detaining authority. Thus, any representation of the detenu against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together clauses (4) and (5) of Article 22, even though express mention in Article 22(5) is only of the detaining authority”. 48. Even at the earlier point of time, R.Keshava, a later decision of a co-ordinate Bench of the Hon'ble Supreme Court, was referred to by both the Division Benches. Saraswathy and Joseph Sebastin (both supra) noticed the aforesaid decision, wherein the Hon'ble Supreme Court held that no duty is cast on the Advisory Board to furnish the whole of the record to the Government along with its report and the representation addressed to it need only be considered by itself. The earlier decision in Smt.Gracy was held to be not imposing any particular duty upon the Board to transmit the representation filed before it to the Government and it was also opined that even if it is so inferred, such observations were uncalled for. Joseph Sebastin placed reliance on the Constitution Bench decision of the Hon'ble Supreme Court reported in 1991 AIR SCW 362 [K.M.Abdulla Kunhi v. Union of India], which stated so in paragraph 11: “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. 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 and to consider such 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 Cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Cl. (4) of Article 22 read with Section 8(c) of the Act. (See: Sk. The right to have the representation, considered by the Government, is safeguarded by Cl. (5) of Article 22 and it is independent of the consideration of the detenu's case and his representation by the Advisory Board under Cl. (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 : AIR 1969 SC 1028 ; Pankaj Kumar Chakrabarty v. State of West Bengal, 1970 (1) SCR 543 : AIR 1970 SC 97 ; Shyamal Chakraborty v. The Commissioner of Police, Calcutta, 1969 (2) SCC 426 : AIR 1970 SC 269 ; B. Sundar Rao v. State of Orissa, 1972 (3) SCC 11 : AIR 1972 SC 739 ; John Martin v. State of West Bengal, 1975 (3) SCR 21 1: AIR 1975 SC 775 ; S. K. Sekawat v. State of West Bengal, 1975 (2) SCR 161 : AIR 1975 SC 64 ; and Haradhan Saha v. State of West Bengal, 1975 (1) SCR 778 : AIR 1974 SC 2154 .” 49. In the present case, it is the case of the learned Government Pleader that there was a representation addressed by the mother of the detenue to the Government, which was rejected. Later, a representation was made to the Advisory Board, which was considered by the Board and the detention order affirmed. There was, hence, no duty cast on the Advisory Board to forward the representation to the Government; nor was it incumbent on the Government to consider that representation filed before the Advisory Board. The counter affidavit also asserts that the representation submitted by the petitioner was rejected by the Government on 19.03.2018. This was prior to the recommendation of the Advisory Board dated 18.04.2018. 50. The representation filed by the mother before the Government against the detention order, in my opinion, is not one sanctioned by the statute. The detenue, though not a free agent and is under detention, has been specifically granted a right under the statute, here KAAPA, to approach the Government and the Advisory Board with a representation. 50. The representation filed by the mother before the Government against the detention order, in my opinion, is not one sanctioned by the statute. The detenue, though not a free agent and is under detention, has been specifically granted a right under the statute, here KAAPA, to approach the Government and the Advisory Board with a representation. The detenue is also to be furnished with all materials relating to the activities on the basis of which his detention is found necessary within five days of detention along with information in writing under acknowledgment of his right to represent to the Government and before the Advisory Board against his detention, under sub-section (2) of Section 7. Sub-section (3) of Section 7 also makes it mandatory for the Superintendent of the Jail where such person is detained to afford him reasonable opportunity to consult a lawyer and give reasonable assistance in making a representation to the Government or to the Advisory Board. The Government is obliged to transmit to the Advisory Board; within three weeks from the date of detention and place the entire materials leading to the detention, before the Advisory Board, along with any representation made by the detenue, under Section 8 of KAAPA. The Division Bench in Joseph Sebastin found that the representation filed before either of these authorities is required to be looked into and considered by both. In saying so, I fall back upon the Constitution Bench decision in K.M. Abdulla Kunhi and the highlighted portion in the above extract. 51. As I perceive it, the scheme of KAAPA is such that if a representation is filed before the Government and the Advisory Board, the Government has to necessarily transmit the records with the representation filed before it to the Advisory Board. This is only subject to the overriding power conferred on the Government to revoke a detention order under Section 13 at any time. Though KAAPA does not permit any representation by a near friend or a close relative, as in this case the mother, the Government could have necessarily exercised their jurisdiction under Section 13 if they are satisfied that there should be a revocation or modification of the order on the basis of the representation by any person other than the detenue. Though KAAPA does not permit any representation by a near friend or a close relative, as in this case the mother, the Government could have necessarily exercised their jurisdiction under Section 13 if they are satisfied that there should be a revocation or modification of the order on the basis of the representation by any person other than the detenue. It is also to be observed that the Government could also exercise such powers under Section 13 in a representation filed by the detenue before transmitting it to the Advisory Board. However, the rejection can be made only after the Advisory Board's opinion is received, since otherwise if the Board interferes with the detention; the Government despite having rejected the representation would be obliged to release the detenue. 52. When a representation is submitted only to the Government by the detenue, subject to the power under Section 13 to revoke the order, the Government at the first instance has to transmit the same to the Advisory Board if it does not seek to revoke it under Section 13. The Advisory Board is then called upon to consider the materials placed before it as also the representation and give an opinion. It goes without saying that if in the opinion of the Advisory Board the detention is not proper, then necessarily the Government has to concede to such opinion. If not, when the order confirming the detention is passed and the same placed before the Government, the Government has the power to differ from the opinion so expressed and modify, reduce or even revoke the order of detention. 53. Likewise, if a representation is filed only before the Advisory Board, then on the detention order being confirmed and re-transmitted to the Government, the Government has an option either to confirm the detention order or to modify or even release the detenue, which can only be exercised on a proper consideration of the representation. The Division Bench in Joseph Sebastin has specifically referred to Section 10(4) of the KAAPA in para 22,and found so: “22. ….A reading of this sub-Section would indicate that the Government has no option if the Advisory Board has an opinion that there is no sufficient cause for detention of the person. The Division Bench in Joseph Sebastin has specifically referred to Section 10(4) of the KAAPA in para 22,and found so: “22. ….A reading of this sub-Section would indicate that the Government has no option if the Advisory Board has an opinion that there is no sufficient cause for detention of the person. On the other hand, when the Advisory Board is of the opinion that there is sufficient cause for detention of a person, it is only optional for the Government to confirm the detention. There is a liberty given to; nay, an authority and power conferred on, the Government to over-rule the findings of the Advisory Board and to release the detenu, without accepting the report. But for that purpose, it is incumbent upon the Government to go through all materials placed before the Government as well as the Advisory Board. The argument of the learned Public Prosecutor that no representation was made to the Government separately is not acceptable to us. It is true that soon after passing the order of detention by the detaining authority, it was served on the detenu and he was also informed and an opportunity was afforded to him to consult his lawyers and all reasonable assistance was directed to be given to him in making any representation against the detention order to the Government or to the Advisory Board. The detenu has in his option filed a representation before the Advisory Board. Initially, the Government has forwarded the file to the Advisory Board in which it is mentioned that no representation was received by the Government from the detenu. The detenu however filed a representation before the Advisory Board which was re-transmitted to the Government with the recommendation of the Board. But, the representation to the Government need not necessarily be one against the detention order, prior to its reference to the Advisory Board”. The Division Bench then held so in para 23 referring to the words employed in Section 7 (2) & (3): “The use of the word 'and' in sub-section (2) and the use of 'or' in sub-section (3) assumes a special significance insofar as the representation filed before either of these authorities; being required to be looked into and considered by both”. 54. 54. The Courts are quite conscious of the public purpose, an enactment sanctioning preventive detention, seeks to serve and the social menace a detention order intends to curb, at least temporarily. The Courts are equally alive to the gross prejudice caused to a citizen and the arbitrary and vindictive possibilities the onerous provisions offer, to the Officials of the State. It may not be often, but also not infrequently that the chains of law are used to shackle the innocent, the righteous, the virtuous, a whistle-blower and plainly put; a thorn in the flesh. When the valuable guaranteed constitutional right of every citizen to roam free, is curtailed, it should be with sufficient cause in strict compliance of the Constitutional and statutory provisions without a fault. The procedure in such cases sheds the cloak of a hand-maiden and becomes the thumb rule. The State in affirming an opinion of the Advisory Board has to necessarily consider the representation filed before the Advisory Board and in so interpreting the provision this Court only advances the valuable right to freedom of a citizen. The legislature in giving the overriding power to the State to interfere with a detention order, even overlooking the opinion of the Advisory Board, expects the State to lend its ear and apply its mind to the desperate plea raised by the detenue. The power can be properly exercised only if the representation of such detenue is addressed and otherwise it will be reduced to a mirage. On the above reasoning applied to the facts of this case, I am of the opinion that the representation filed before the Advisory Board ought to have been considered by the Government, which obviously was not done. In the above circumstances and the reasoning supplied by me, I agree with the conclusion of my learned companion Judge that the detenue has to be released. ORDER OF THE COURT In view of the separate reasoning adopted by us, to arrive at the same conclusion, the Writ Petition (Criminal) is allowed and the detenu shall be released forthwith if he is not required or detained in connection with any other crime. The Registry shall communicate the order to the Superintendent of the Prison in which the detenu is detained, for his immediate release. It is made clear that this shall not preclude the Government from proceeding afresh under the KAAPA.