Omprakash @ Omi @ O. P. Son Of Shri ... vs The State Of Rajasthan
2022 Latest Caselaw 7555 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 D.B. Habeas Corpus Petition No. 217/2022

Omprakash @ Omi @ O. P. Son Of Shri Bhanaram, Aged About
26 Years, Resident Of Dhani Samota Ki Tan Shivpura, Police
Station Shrimadhopur, District Sikar (Raj.)
(At Present Detenue In Central Jail, Jaipur) Through His Brother
Manish Son Of Shri Bhanaram, Resident Of Dhani Samota Ki, Tan
Shivpura, Police Station Shrimadhour, District Sikar (Raj.).
                                                                           ----Petitioner
                                         Versus
1.         The    State      Of     Rajasthan,         Through        The        Secretary,
           Department         Of     Home,        Government          Of     Rajasthan,
           Secretariat, Jaipur.
2.         District Magistrate, Sikar, District Sikar (Raj.).
3.         Superintendent Of Police, Sikar, District Sikar (Raj.).
                                                                      ----Respondents

For Petitioner(s) : Mr. Ripu Daman Singh Naruka For Respondent(s) : Mr. Rajendra Yadav, GA-cum-AAG

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Order

01/12/2022

Heard.

This petition is directed against preventive detention orders

passed against the petitioner by the District Magistrate on

07.03.2022, approved by the State on 15.03.2022 and also

confirmed by the Advisory Board under the provisions of the

Rajasthan Prevention of Anti Social Activities Act of 2006.

The records of the case unfold that vide memo dated

05.03.2022, the Superintendent of Police, District Sikar forwarded

to the District Magistrate Sikar information for initiating

(2 of 9) [HC-217/2022]

proceedings for preventive detention of the petitioner under

Section 3 of the Act of 2006 which contained information relating

to registration as many as nineteen criminal cases against the

petitioner.

Vide order dated 07.03.2022 Collector & District Magistrate

Sikar in exercise a power conferred under Section 3(2) of the Act

of 2006 passed an order of preventive detention of the petitioner

by declaring the petitioner to be a dangerous person as defined

under Section 2(c) of the Act of 2006 and recording a satisfaction

that with a view to prevent the petitioner from acting in a manner

prejudicial to the maintenance of public order, it has become

necessary to detain him. The Superintendent of Police was

directed to serve a copy of order of the detention to the petitioner

and also to the near relatives. It was also directed that the order

of detention be forwarded to the State Government for approval

within three days.

Vide order dated 15.03.2022, the State Government, in

exercise of powers conferred under Section 3(3) of the Act of 2006

approved the order of detention passed by the District Magistrate.

The law requires the State Government to refer the matter

to the Advisory Board and the case was referred by the

Government to the Advisory Board constituted under the law.

The records shows that the Advisory Board held sitting through

Video Conference and the order of the detention was confirmed by

the Advisory Board. Finally, this writ petition came to be filed by

the petitioner.

Learned counsel for the petitioner laid attack to order of

detention passed by the Collector & District Magistrate, approved

by the State Government and confirmed by the Advisory Board,

(3 of 9) [HC-217/2022]

firstly, on the ground that statutory mandate of Section 9 of the

Act of 2006 has been seriously violated in as much as no earliest

opportunity of making representation against the order to the

State Government was accorded to the petitioner. He would

submit that the detaining authority was obliged under the law to

afford earliest opportunity of making representation against the

order of detention, so that the State Government could apply its

mind before approving the order of detention. It is next submitted

that though the petitioner was not afforded the opportunity, the

brother of the petitioner had sent a representation to the Home

Department of the State Government on 15.03.2022. But despite

that, the State Government approved the order of detention and

the order of detention nowhere mentions regarding the

representation made by the brother of the petitioner much less

affording of an opportunity of making a representation by the

petitioner. Therefore, it is argued that there has been violation of

mandatory provisions contained in Section 9 of the Act of 2006

and only on this ground, the order of the detention is liable to be

set aside.

Learned counsel for the petitioner raised further contention

with regard to correctness of the order of detention by submitting

that in most of the cases, the FIRs were lodged against unknown

persons and at a later stage of investigation, the petitioner was

involved in the criminal cases which smacks of malafide action

against the petitioner. It is also argued that in all FIRs, which have

been lodged in the year 2020-2021, there has been long delay

which also indicated that there is a calculated attempt to involve

the petitioner in stale matters. Referring to various orders, which

have been placed on records, granting bail, it has been submitted

(4 of 9) [HC-217/2022]

that invariably in all the cases, the petitioner was granted bail and

in one of the case, he has been acquitted on the basis of

compounding. Learned counsel for the petitioner would further

argue that unless conviction results in individual criminal case, the

power under Section 3 of the Act of 2006 could not be invoked.

Learned counsel for the petitioner further argued that

without their being any application for cancellation of bail granted

on the ground of misuse of liberty, the extreme action of

preventive detention under the detention laws has been resorted

to. Therefore, the order suffers from illegality.

He has relied upon the judgments of the Supreme Court of

India in the cases of Mallada K Sri Ram Vs. The State of Telangana

& Ors. Criminal Appeal No.561 of 2022 (Arising out of SLP(Crl)

No.1788 of 2022) decided on 04.04.2022, Pushkar Mukherjee &

Ors. Vs. The State of West Bengal, 1969 SCC (1) 10 and

Rushikesh Tanaji Bhoite Vs. State of Maharashtra 2012 (2) SCC

72, judgment of the High Court of Jammu & Kashmir and Ladakh

at Srinagar in the case of Sajad Ahmad Bhatt Vs. UT of J & K and

Anr., WP (Crl) No.127/2022 decided on 07.11.2022, judgment of

Gujarat High Court at Ahmedabad in the cases of Mazhar S/O

Farookbhan Ansari Vs State of Gujarat R/Special Civil Application

No.20835 of 2022 decided on 20.10.2022 and Vishal S/O

Pravinbhai Jogel Vs. State of Gujarat R/Special Civil Application

No.10600 of 2022 decided on 29.08.2022.

On the other hand, learned counsel appearing for the State

would argue that the order of detention has been passed strictly in

accordance with law. He submit that on the basis of the factual

report with regard to registration of large number of criminal

cases against the petitioner submitted by the Superintendent of

(5 of 9) [HC-217/2022]

Police before the District Magistrate, proceedings under Section 3

of the Act of 2006 were initiated. The Collector & District

Magistrate took into consideration, number of criminal cases, the

proximity and frequency of repetitive criminal antecedents which

not only related to minor offences but also serious cases. Upon

due application of mind the Collector & District Magistrate

recorded satisfaction that it has become necessary to pass an

order of preventive detention, so as to prevent the petitioner from

acting in any manner prejudicial to the maintenance of public

order. He would submit that the material placed on record satisfies

the legal requirement of petitioner being habitual of committing or

attempting to commit or abet commission of offences enumerated

in clause (c) of Section 2 of the Act of 2006. Next submission of

learned counsel for the State is that even if the brother of the

petitioner submitted a representation, it has to be presumed that

the State Government while approving the order passed by the

District Magistrate, had looked into the representation and

therefore, alleged violation of the mandate of Section 9 of the Act

of 2006 does not prejudice the petitioner. It is lastly submitted

that the entire case of the petitioner was examined by the

Advisory Board and the Advisory Board after examination of all

the material including affording of an opportunity of hearing to the

detenue, confirmed the order of detention. Therefore, there is no

ground made out to interfere with the order of detention.

We have heard learned counsel for the parties, perused the

records, the proceedings of the Advisory board.

Though, number of grounds have been urged by the learned

counsel for the petitioner, one of the ground to assail the order of

the detention is that there is violation of mandate of Section 9 of

(6 of 9) [HC-217/2022]

the Act of 2006. In order to appreciate the submission, we

considere it appropriate to reproduce the provisions contained in

Section 9 of the Act of 2006 which reads as below:

"Grounds of order of detention to be disclosed to detenue.-

(1) When a person is detained in pursuance of a detention order the authority making the order shall, as soon as may be, but not later than three days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the State Government.

(2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose."

The bare perusal of the provisions show that when a person

is detained in pursuance of the detention order, the authority

making the order shall, as soon as may be, but not a later than

three days from the date of detention, communicate to the

detenue the grounds on which the order has been made. But that

is not the only requirement of Section 9. The provision further

clearly states that the authority shall afford detenue, earliest

opportunity of making representation against the order to the

State Government. This provision on its rational, fair and logical

interpretation would mean that the authority passing the order of

the detention is obliged under the law to clearly inform in writing

to the detenue that he has right to prefer a representation at the

earliest occasion, to the State Government. This is so because the

order passed by the District Magistrate, unless approved by the

State Government, will come to an end after twelve days. This is

(7 of 9) [HC-217/2022]

clear from provisions contained in Section 3(3) of the Act of 2006

which reads as below:-.

"When any order is made under this section by an authorized officer he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government."

Conjoint reading of provisions contained in Section 3(3) of

the Act of 2006 and Section 9 of the Act of 2006 makes it clear

that in order that the detention order continues beyond period of

twelve days, it is required to be approved by the State

Government. The Act of approval by the State Government is not

an empty formality. The representation, if any made by the

detenue, would be required to be taken into consideration by the

State Government. Therefore, the mandate of Section 9 of the Act

of 2006 that the authority passing the order of detention shall

afford the detenue the earliest opportunity of making a

representation against the detention order to the State

Government is mandatory and not a directory provisions.

We are of the view that this opportunity of making a

representation at the earliest by the detenue has not been

afforded.

Merely because one of the relatives of the detenue has

preferred a representation to the State Government on

15.03.2021, cannot be treated as compliance of the mandate of

Section 9 of the Act of 2006 because the right to prefer

representation as conferred under Section 9 of the Act of 2006 is

(8 of 9) [HC-217/2022]

personal to the detenue. For this, it is absolutely mandatory that

the authority passing the order detention must inform the detenue

that he has right to prefer a representation. Moreover, the use of

the word "earliest opportunity of making a representation" further

signifies the legislative intent that the detenue has to be afforded

the opportunity of making the representation as soon as the order

of detention is passed.

The respondent, in their reply, have nowhere stated that

after passing the order of the detention, the competent authority

complied with the mandate of law by affording the detenue

earliest opportunity of making a representation to the State

Government. This, in our opinion, vitiates the proceedings.

The order of the State Government passed on 15.03.2022,

shows that it has approved the detention passed by the District

Magistrate on 07.03.2022 and there is no whisper with regard to

representation, if any, placed before it. Thus, serious prejudice has

been caused to the petitioner on account of non-compliance of the

mandatory provisions contained in Section 9 of the Act of 2006.

The petitioner was deprived of making a representation to the

State Government and without such opportunity having been

granted, the State Government approved the order of the

detention and thus, it has resulted in continuance of detention

beyond twelve days and rendered it illegal and unconstitutional.

The Constitutional mandate and as enshrined in Article 21 of

Constitution of India has been violated in this case as the

petitioner's liberty has been taken away without the authority of

the law. Subsequent confirmation of the order would not legalise

the initial order of detention nor would make the detention after

twelve days as legal and valid.

(9 of 9) [HC-217/2022]

In view of above consideration, it is not necessary for us to

examine other issues which have been raised. We are of the view

that the denial of opportunity of making a representation to the

detenue has vitiated the detention beyond twelve days.

In the result, petition is allowed. Order of detention is set

aside and the petitioner shall be released forthwith.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J

Keshav/108

Powered by TCPDF (www.tcpdf.org)