ORDINANCE NO. 44 OF 2007
THE KERALA ANTI-SOCIAL ACTIVITIES (PREVENTION) ORDINANCE, 2007
Promulgated by the Governor of Kerala in the Fifty- eighth year of the Republic of India.
AN
ORDINANC
to provide for the prevention and control of anti-social activities in the State of Kerala.
Preamble.- WHEREAS, it is expedient to provide for the prevention and control of anti-social activities in the State of Kerala;
AND WHEREAS, the Kerala Anti-social Activities (Prevention) Ordinance, 2006 (60 of 2006) was promulgated by the Governor of Kerala on the 13th December, 2006;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by, the Legislative Assembly of the State of Kerala during its session which commenced on the 27th day of December, 2006 and ended on the 29th day of December, 2006;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (21 of 2007) was promulgated by the Governor on the 4th day of February, 2007;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by, the Legislative Assembly of the State of Kerala during its session which commenced on the 2nd day of March, 2007 and ended on the 29th day of March, 2007;
AND WHEREAS, in order to keep alive the provisions of the said Ordinance, the Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (30 of 2007) was promulgated by the Governor on the 30th day of March, 2007;
AND WHEREAS, a Bill to replace the said Ordinance by an Act of the State Legislature could not be introduced in, and passed by, the Legislative Assembly of the State of Kerala during its session which commenced on the 19th day of June, 2007 and ended on the 26th day of July, 2007;
AND WHEREAS, under sub-clause (a) of clause (2) of Article 213 of the Constitution of India the said Ordinance will cease to operate on the 31st day of July, 2007;
AND WHEREAS, difficulties will arise if the provisions of the said Ordinance are not kept alive;
AND WHEREAS, the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by clause (1) of Article 213 of the Constitution of India, the Governor of Kerala is pleased to promulgate the following Ordinance:--
1. Short title and commencement.-- (1) This Ordinance may be called the Kerala Anti-Social Activities (Prevention), Ordinance, 2007.
(2) It shall be deemed to have come into force on the 13th day of December, 2006.
2. Definitions.--In this Ordinance, 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 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;
(b) ''Authorised Officer'' means any officer authorised by the Government under sub-section (2) of section 3;
(c) ''Bootlegger'' means a person who illegally manufactures, stores, transports, sells or distributes any liquor or intoxicating substances or a person who knowingly abets or facilitates, partly or fully, such activity;
(d) ''Close Relative'' means spouse, parent, children or sibling and first degree blood-relatives of such spouse, parent or sibling and will include the children and spouses of such persons;
(e) ''Counterfeiter'' means and includes any person who knowingly and wilfully makes, stocks or distributes counterfeit coins or currency and includes a person who knowingly abets any such activities;
(f) ''Detention order'' means an order made under section 3;
(g) ''Depredator of environment'' means a person who, by any direct act by which he derives mercenary or commercial benefit, commits an offence under any law relating to protection of environment or rivers or under any law relating to sand mining from any place or under any law relating to quarrying or mining, or who commits or abets the commission of offences punishable under any law relating forests or wild life conservation;
(h) ''Digital Data and Copyright Pirate'' means and includes any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, artistic or scientific work and includes any person who illegally enters and illegally uses any computer or digital network for any illegal personal profit by deceiving any person or any computer system as to the identity of the user;
(i) ''Drug-Offender'' means a person who illegally cultivates, manufactures, stocks, transports, sells or distributes any drug in contravention of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Central Act 61 of 1985) or in contravention of any other law for the time being in force, or who knowingly does anything abetting or facilitating any such activity;
(j) ''Goonda'' means and includes a person who indulges in or promotes or abets illegal activities which are directly or indirectly, prejudicial to the maintanence of public order and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, an hawala racketeer, an hired ruffian, an immoral traffic offender, a loan shark or a property grabber;
(k) ''Government'' means the Government of Kerala;
(l) ''Hawala Racketeer'' means any person who illegally buys or sells or deals in foreign currency under circumstances from which it can be reasonably inferred that he is doing so as a member of any organised group;
(m) ''Hired Ruffian'' means and includes any person who receives pecuniary consideration in cash or kind for use of unlawful force either by himself or by any person for causing injury to any person or for criminally intimidating any person or for damaging any property belonging to any other person or for illegally dispossessing any person from any movable or immovable property in his possession;
(n) ''Immoral Traffic Offender'' means a person who commits or abets the commission of any offence under the Immoral Traffic (Prevention) Act, 1956 (Central Act 104 of 1956);
(o) '' 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 competent authority, on complaints initiated by persons other than police officers, in two separate instances not forming part of the same transaction, committed any act within the meaning of the term 'goonda' as defined in clause (j) of section 2.
(p) ''Known Rowdy'' means any person, who had been found, 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 Ordinance;--
(i) 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;
(ii) guilty, by a competent court at least twice for any offence of the nature under item (ii) of clause (t) of section 2 or any offence notified as such under the said clause;
(iii). committed, on investigation or enquiry by a competent police officer or other competent authority, on complaints initiated by persons other than police officers, in three separate instances not forming part of the same transaction, any offence mentioned in clause (t) of section 2
Provided that any offence committed by a person,-
(i) by virtue of his involvement as a member of the family or a close relative of the family in an incident which took place by a reason of a family dispute or quarrel involving family members of close relatives on either side; or
(ii) by virtue of his involvement as a neighbour or as a close relative of the neighbour in an incident which occurred due to a dispute between immediate neighbours; or
(iii) by virtue of his involvement as an employee of any establishment in an incident which occurred in connection with a dispute between himself and the establishment with regard to the conditions of service; or
(iv) as a member of the student community in a recognised educational institution, by virtue of his involvement, merely by his presence but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of students of the institution in that particular incident; or
(v) as a member of a recognised political party, by virtue of his involvement merely by his presence, but without any overt act constituting the offence mentioned in clause (t) of section 2 without being involved in any criminal conspiracy facilitating the same, in an incident which occurred due to the general involvement of the workers of that party in an agitation or protest or programme organised by the party with prior information given to the police officer or magistrate having jurisdiction; or
(vi) by virtue of his involvement in a criminal act committed by him before he had attained the age of eighteen years;
shall be omitted from the computation of the number of offences taken into account for deciding whether a person is a known-rowdy;
(q) ''Loan Shark'' means and includes a money lender or any person engaged, directly or indirectly by the money lender or by someone acting on his behalf, who uses or threatens to use physical violence against any person for the purpose of collecting any part of the loan or interest thereon or any instalment thereof or for taking away any movable or immovable property connected with the loan transaction or the realization of whole or part of the loan amount or interest thereon;
(r) ''Money Lender'' means an individual money lender or any money lending institution of any type, but shall not include either a banking institution recognised by the Reserve Bank of India or a Co-operative society registered or deemed to be registered under the Kerala Co-operative Societies Act, 1969(21 od 1969);
(s) ''Property Grabber'' means a person who illegally takes possession, either for himself or on behalf of others, of any movable or immovable property belonging to Government and Government owned institutions or of any person and will also include a person who creates illegal tenancies or lease or rent or licence agreements, or any other agreements, express or implied, in respect of such properties, and who knowingly gives financial aid to any person for taking illegal possession of such properties or construction of unauthorised structures thereon or who attempts to collect from any possessors of such properties, rent, compensation or other charges by criminal intimidation or who evicts or attempts to evict any such possessor by force without resorting the lawful procedure or who abets in any manner or doing of any of the above mentioned things;
(t) ''Rowdy'' means a person who either by himself or as member of a gang commits or attempts to commit, or abets the commission of any offences under Chapters XVI, XVII, & XXII of the Indian Penal Code, 1860 (Central Act 45 of 1860), or any offences under the provisions of the Arms Act, 1959 (Central Act 54 of 1959), or the Explosive Substances Act, 1908 (Central Act 6 of 1908),--
(i) punishable with more than five years of
imprisonment of any type, or;
(ii) with less than five years of imprisonment of
any type, excluding those punishable with
less than one year of imprisonment; or
such offences under any other law for the time being in force, coming under item (i) or (ii) as may be notified by the Government, from time to time.
(u) ''Secretary, Home Department'' means the Home Secretary to the Government of Kerala and includes any Government Secretary, Principal Secretary or Additional Chief Secretary appointed by the Government to discharge the duties of the Home Secretary.
3. Power to make orders detaining Known Goondas and Known Rowdies.--(1) The Government or an officer authorised under subsection (2), may, if satisfied on information received from a Police Officer not below the rank of a Superintendent of Police with regard to the activities of any known goonda or known rowdy, that, with a view to prevent such person from committing any anti-social activity within the State of Kerala in any manner, it is necessary so to do, make an order directing that such person be detained.
(2) If having regard to the circumstances prevailing, or likely to prevail in any area, the Government, if satisfied that it is necessary so to do, may, by order in writing, direct that during such period as may be specified in the said order, the District Magistrate having jurisdiction may exercise the powers under sub-section (1) in respect persons residing within his jurisdiction or in respect of any person who has been acting or is about to commit any anti-social activity within such jurisdiction.
(3) When any order is made by the authorised officer under sub-section (2), he shall forthwith report the fact to the Government and to the Director General of Police, Kerala, together with a copy of the order and supporting materials which, in his opinion, have a bearing on the matter and no such order shall remain in force for more than ten days, excluding gazetted holidays, from the date of detention of such Known Goonda or Known Rowdy, unless, in the meantime, it has been confirmed by the Government.
4. Execution of detention orders.-- A detention order may be executed at any place in the State of Kerala in the manner provided for execution of warrants of arrest under the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).
5. Places of detention.--Every person in respect of whom a detention order has been made shall be detained in Central Prisons or District Jails within the State of Kerala and a copy of the detention order bearing the signature and seal of the detaining authority shall be given to the Superintendent of the Jail concerned while admitting such person into the Jail.
6. Absconding person.--If the person in respect of whom a detention order has been made has absconded, the provisions of sections 82, to 86 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), shall apply in respect of such person and his property.
7. Grounds of order of detention to be disclosed .--(1) When a person is arrested in pursuance of a detention order, the officer arresting him shall read out the detention order to him and give him a copy of such order along with the grounds on the basis of which the order has been made and he shall also be informed in writing, under acknowledgement, of his right to represent to the Government and before the Advisory Board against his arrest and detention.
(2) The Superintendent of the Jail where such person is detained shall afford him every opportunity to consult lawyers and every reasonable assistance in making a representation against the order to the Government or the Advisory Board:
Provided that nothing in this section shall require any authority to disclose to the detained person any fact, the disclosure of which will reveal the identity of any confidential source or the disclosure of which will be against the interests of internal security or national security .
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 or 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 members who are qualified under the Constitution of India to be appointed as a Judge of a High Court.
9. Reference to Advisory Board.-- In every case where a detention order has been made under this Act, the Government shall, within three weeks from the date of detention of a person, place before the Advisory Board, the grounds on which the order has been made and the representation, if any, made by the person affected, and, in the case where the detention order has been made by an authorised officer, the report by such officer under sub-section (3) of section 3.
10. Action by Advisory Board.--(1) The Advisory Board shall, after considering, in such manner as it may deem fit, the report from the Government or any representation from the person detained or any other affected person and after examining, without disclosing to any person, all relevant documents and after hearing such persons, as it may deem fit, report to the Government within two months from the date of detention of the person whether,--
(a) there was sufficient ground to detain the person as on the date of detention;
(b) there is sufficient ground to continue to detain the person till such date as may be specified by the Board.
(2) When there is a difference of opinion among the members of the Advisory Board, the opinion of the majority shall be deemed to be the opinion of the Board.
11. Action upon report of Advisory Board.-- (1) In any case where the Advisory Board has reported that, in its opinion, there is sufficient reason for the detention of a person, the Government may confirm the detention order and continue the detention of the person concerned for such period not exceeding the maximum period specified in section 12, as they deem fit.
(2) In any case where the Advisory Board reports that , in its opinion, there is no sufficient reason for the continued detention of the person concerned, the Government shall revoke the detention order and cause the person to be released forthwith.
(3) No public servant shall be penalised in any manner for any act or omission which took place in good faith, in pursuance of official duty cast upon him or in preparing any material or document for the purpose of initiating action under this Ordinance or for any omission or error in listing out or categorising any offence in which the detained person had been involved or convicted.
(4) Any public servant who has knowingly committed any act or omission with the intention of falsely implicating any person under the provisions of this Ordinance,--
(i) shall be liable to pay to the Government, if so ordered by the Government, a sum not exceeding rupees one thousand per day for every day of detention or part thereof in case of detention; and
(ii) shall be liable to pay to the affected person a sum of rupees one hundred per day for every day on which any person was prevented from attending to his normal work or avocation by reason of his false implication in any proceeding under this Ordinance:
Provided that the liabilities shall be in addition to normal prosecution for such offences as may have been found to have been committed by such public servant for facilitating such false implication.
12. Maximum Period of detention.-- The maximum period for which any person may be detained in pursuance of any detention order made under this Ordinance, which has been confirmed under section 11, shall not exceed six months from the date of detention.
13. Revocation of detention order.--(1) A detention order may, at any time, be revoked or modified by the Government.
(2) The revocation or expiry of a detention order shall not be a bar for the issuance of another detention order under section 3 against the same person, on the basis of fresh facts which may come to light after revocation or expiry of the earlier detention order made against that person.
14. Temporary release of persons detained.-- The Government may, at any time, direct that any person detained in pursuance of a detention order may be released for a period not exceeding one week either without any condition or under such conditions as may be specified in the direction, and may at any time, cancel such direction issued earlier.
15. Power to make orders restricting the movements of certain persons.-- (1) The District Magistrate or a police officer of and above the rank of Deputy Inspector General having jurisdiction, if satisfied on information received in respect of a known goonda or known rowdy, and after having given him an opportunity to be heard by a notice served on him or pasted at his usual place of residence, if any, in Kerala, that he is acting or is about to act or is likely to act against public safety, order and peace and with a view to prevent him from so acting at any place within the jurisdiction of such Magistrate or officer, may make an order,--
(a) directing that, except in so far as he may be permitted by specific conditions made in the order, he shall not visit any such area or place as may be specified in the order, for a period not exceeding one year;
(b) requiring him to report his movements within the State, in such manner, at such times, and to such authority or person as may be specified in the order, for a period not exceeding one year:
Provided that a copy of the order along with the grounds for issuing such order shall be communicated to the Government through the Director General of Police.
(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, partially or in full.
(3) The Government or the authority which issued the order under sub-section (1) may, on its own, annul or amend the order at any time either in part or in full.
(4) Any person violating an order under sub-section (1) shall be deemed to have committed an offence punishable with imprisonment for three years.
16. Punishment for concealing persons ordered to be detained.--Whoever, knowing or having reason to believe that an order against any person has been made under section 3 or section 15, harbours or conceals such person, shall be punished with imprisonment for a term which shall not be less than three months but may extend to one year, and shall also be liable to fine which may extend to one thousand rupees.
17. Powers of search.-- (1) The Government or the authorised officer may, by general or special order, empower any police officer to search any place, stop and search any vessel, vehicle or animal, and may seize anything which he has reason to believe, has been, is being, or is about to be, used for committing any anti-social activity.
(2) Any officer empowered under sub-section (1) shall forthwith report to the Government or the authorised officer in detail any seizure made by him and pending the receipt of their orders, may detain in custody anything so seized or take such other steps for its safe custody, as he may think proper.
(3) The Government or the authorised officer may make such order as they deem fit, for the disposal of anything seized under sub-section (1), by destruction, confiscation or in such other manner, as they may direct.
18. Protection of action taken in good faith.--(1) No suit, prosecution or other legal proceeding shall lie against any officer, authorised or otherwise for anything which is done or intended to be done in good faith in pursuance of any order made or deemed to be made under this Ordinance.
(2) No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused by anything which is done or intended to be done in good faith in pursuance of any order made or deemed to be made under this Ordinance.
19. Offences to be cognizable and Non-bailable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences and wilful violations of lawful orders made under this Act shall be cognizable and non-bailable.
20. Manner of issue of orders of Government.- All orders issued by the Government under this Act shall be under the seal and signature of the Secretary, Home Department.
21. Power to make rules.- (1) The Government may make rules, not inconsistent with this Ordinance, for carrying out the purposes of this Ordinance.
(2) Every rule made under this sections shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
22. Repeal and Savings.-- (1) The Kerala Anti-Social Activities (Prevention) Ordinance, 2007 (30 of 2007), is hereby repealed.
(2). Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Ordinance.
GOVERNOR.
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