Any representation made to the government has to be considered by advisory board: HC while rejecting challenge against KAAPA

  

On 19^th July, a Division Judge Bench of the Kerala High Court consisting of Justices K.Vinod Chandran and Ziyad Rahman A.A. while rejecting  a Writ petition filed by the mother of a detenue challenging the Kerala Anti-Social Activities (Prevention) Act, 2007, stated that since there can be no repugnancy found between the legislation of the Union Parliament and the state legislature as they are made on different aspects contained in Entry 3 of List III of the 7th Schedule to the Constitution of India therefore the court did not find any reason to consider the challenge.

The bench also confirmed the precedent stating that if a representation is addressed to the Government alone, before the Advisory Board enters on a finding, the same has to be forwarded to the Advisory Board for consideration.

Facts of the case:

The present writ petition was filed by the mother of a detenue detained as per Ext.P1 order dated 23.10.2020, is before this Court challenging the detention claiming that the KAA(P) is in direct conflict with Section 3 of the National Security Act. He was arrested on 27.10.2020 and the order of approval at Ext.P3 was dated 10.11.2020, within the 12 days as provided under Section 3 of the Kerala Anti-Social Activities (Prevention) Act, 2007.  The matter was later referred to the Advisory board which confirmed the order on 24.12.2020.

Contentions of the Petitioner:

 

The following contention has been made on by Sri.Renjith B. Marar, learned Counsel for the petitioner:

1. It was contend that KAA(P)A is in direct conflict with Section 3 of the National Security Act, therefore, the Act passed by the State Legislature is repugnant being violative of Article 254 of the Constitution.
2. It was also contend that the complaint on 11.10.2020 is by a Police Officer and the same has to be excluded under Section 2(p)(iii), being a complaint initiated by a Police Officer.
3. The Petitioner further argued that the he Advisory Board had confirmed the order on 24.12.2020, which was not earlier known to the petitioner or the detenue.

Contentions of the Respondent:

The following contention has been made on behalf of the Respondent:

 

1. It was contended that KAP(P)A was enacted under Entry 3 of List III and the National Security Act dealing with the security of the Nation while KAA(P)A deals with maintenance of public order thus raising no question of repugnancy.
2. It was further contended that the detenu had been under preventive detention earlier and the challenge against which was dismissed by the Court.
3. It was submitted that the latest crime was initiated by the Police Officers having being  threatened to be attacked with lethal weapons and causing interference to their official duties when they were in the process of arresting one another criminal.
4. It was further argued that the representation before the Advisory Board was subsequent to its approval. It was also stated that when the representations were made to the Advisory Board and the Government it was rejected after consideration.

Observation and judgement of the court:

The Hon’ble bench of Delhi High Court made the following observation:

1. There was no repugnancy found as the legislation referred to are enacted by the Union Parliament and the State Legislature on two different aspects contained in Entry  3 of List III of the 7th Schedule to the Constitution of India.
2. The bench was of the opinion that if a representation is addressed to the Government alone, before the Advisory Board enters on a finding the same has to be forwarded to the Advisory Board for consideration.

It was thus held that as the detenu is a person who had been habitually indulging in crimes causing threat, fear, nuisance and disturbance to the society therefore the court found no scope of interference with the order of detention as confirmed by the Advisory Board and the Government. 

 

Thus, the Writ Petition was rejected.

Read Judgment 

 

 

SOURCE ; .latestlaws.com

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