PRADEEP KUMAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the father of Swaroop (hereinafter referred to as the detenu). The petitioner's son stands detained under the provisions of the Kerala Anti-Social Activities (Prevention) Act (for short, 'the Act'). The detenu has been detained on the basis that he is a known-rowdy, vide Ext. P9 order. Ext. P9 is dated 27.9.2011. Pursuant to the order, the petitioner came to be arrested on 20.11.2011 (the date of detention, according to the learned A. D. G. P. is 21.11.2011). The order is approved vide Ext. P10 dated 2.12.2011. We heard learned counsel for the petitioner and the learned Additional Director General of Prosecutions. There is also representation on the part of Assistant Solicitor General.

(2.) Learned counsel for the petitioner would address the following arguments before us: He would submit that 44th Amendment Bill to the Constitution of India was passed way back in 1978. It received the assent of the President shortly thereafter. No doubt, the Bill contemplated that Executive must bring the Bill into force from a particular date. Despite the passage of more than three decades, it is complained that on account of the inaction of the Executive, the law remains merely on paper. According to him, if the 44th Amendment is considered, the detention of the detenu is palpably illegal. It is for the reason that under the 44th Amendment, the composition of the Advisory Board is such that it is totally inconsistent with the constitution of the Advisory Board as at present. He would refer us to the judgment in A. K. Roy v. Union of India, 1982 AIR(SC) 710, besides the judgment of the Apex Court in Attorney General of India v. Amratlal Prajivandas, 1994 5 SCC 54. Even though we have granted time to the Union of India to file a counter affidavit, no counter affidavit as such is filed.

(3.) The next point which is urged before us by the learned counsel for the petitioner is that havingregard to Entry 3 of List III of VIIth Schedule to the Constitution of India, the State of Kerala did not possess the legislative competence to enact the Act. Next, he would contend that the grounds of detention were not served on the detenu, as required under law. Still further, he would contend that the right available to the detenue to make a representation to the Government and the Advisory Board was not made known to him in writing, as required under Section 7(2) of the Act. Then, he would submit that the order is bad for the reason that there is non-application of mind to the conditions in the bail orders granting bail to the detenu. He would in fact, contend that the bail orders were not placed by the sponsoring authority before the detaining authority. He also complained that before the Advisory Board, there was violation of natural justice.