Rajasthan High Court - Jodhpur

Mangi Kumari vs The State Of Rajasthan on 25 May, 2023

Bench: Arun Bhansali, Rajendra Prakash Soni

[2023/RJJD/016590] (1 of 21) [HC-3/2023]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Habeas Corpus Petition No. 3/2023

Mangi Kumari D/o Sona Ram, Aged About 31 Years, R/o Sodiyar, Barmer (Raj.).

----Petitioner Versus

1. The State Of Rajasthan, Through Secretary, Department Of Home, Government Of Rajasthan, Secretariat, Jaipur (Raj.).

2. The District Magistrate, Barmer (Raj.).

3. Superintendent Of Police, Barmer (Raj.).

4. Station House Officer, Police Station, Chohtan, District Barmer (Raj.).

----Respondents

For Petitioner(s) : Mr. Gajendra Kumar Rinwa.

Mr. Aditya Sharma For Respondent(s) : Mr. M.A. Siddiqui, G.A.-cum-AAG with Mr. A.R. Malkani.

HON'BLE MR. JUSTICE ARUN BHANSALI HON'BLE MR. JUSTICE RAJENDRA PRAKASH SONI Judgment Reportable 25/05/2023 (PER HON'BLE MR. ARUN BHANSALI, J.)

1. This writ petition in the nature of habeas corpus has

been filed by the petitioner questioning the validity of order dated

13.07.2022 (Annex.2), whereby the District Magistrate, Barmer,

while exercising the powers under Section 3 of the Rajasthan

Prevention of Anti-Social Activities Act, 2006 ('the Act'), has

ordered for preventive detention of detenue's brother Bhera Ram

S/o Sona Ram subject to approval by the State Government &

opinion of the Advisory Board and order dated 21.09.2022

[2023/RJJD/016590] (2 of 21) [HC-3/2023]

(Annex.3) passed by the Joint Secretary, Department of Home,

whereby based on the opinion dated 25.08.2022 of the Advisory

Board regarding availability of sufficient cause for the detention of

the detenue, order has been passed confirming the detention

order dated 13.07.2022 and has ordered that the detenue be kept

in detention till 13.07.2023.

2. It is, inter-alia, indicated in the petition that the

Superintendent of Police, District Barmer filed a complaint on

13.07.2022 with reference to provisions of Section 2(b)(c) and

Section 3 of the Act against Bhera Ram, inter-alia, indicating that

conduct of Bhera Ram falls within the definition of 'dangerous

person' as defined in the Act and as he is involved in disturbing

the public order, for the purpose of putting effective restriction on

his criminal activities, order be passed for keeping him under

preventive detention under the Act.

3. Based on the said complaint on 13.07.2022 itself, the

District Magistrate, Barmer came to the conclusion that Bhera

Ram was a dangerous person under the provisions of Section 2(c)

of the Act and there was sufficient reasons available for his

preventive detention and consequently, exercising delegated

powers under Section 3(2) of the Act, ordered for his preventive

detention.

4. It appears that in terms of provisions of Section 3(3) of

the Act, which requires approval of the State Government, in case,

order of preventive detention is made by an officer authorized

under Section 3(2) of the Act, the State Government approved the

preventive detention by its order dated 21.07.2022 (Annex.A/2).

[2023/RJJD/016590] (3 of 21) [HC-3/2023]

Whereafter, the matter was referred to the Advisory Board under

Section 11 of the Act and the Advisory Board by its opinion dated

25.08.2022 came to the conclusion that there exists sufficient

cause for detention of the detenue Bhera Ram and that the

proposed detention may be confirmed by the State Government as

per law, which led to passing of the order dated 21.9.2022

(Annex.3) by the State Government, as noticed herein-before,

confirming the preventive detention of the detenue till

13.07.2023.

5. Learned counsel for the detenue made vehement

submissions that exercise of power by the respondents in placing

the detenue under preventive detention is ex-facie contrary to the

settled law dealing with the preventive detention, inasmuch as,

the procedural requirements as detailed in the Act have not at all

been followed and the foundational requirements of the Act

regarding the detenue being a dangerous person itself is not

satisfied.

6. It was submitted that the provisions of Section 9(1) of

the Act specifically provides affording of the earliest opportunity of

making a representation against the order to the State

Government, however, no such opportunity was afforded to the

detenue.

7. It was submitted that the parameters for providing the

opportunity have been laid down in Omprakash @ Omi v. State of

Rajasthan & Ors. : D.B. Habeas Corpus Petition No.217/2022,

decided on 01.12.2022 (At Jaipur Bench), however, the

parameters laid down therein have been grossly flouted.

[2023/RJJD/016590] (4 of 21) [HC-3/2023]

8. It was submitted that initially the material showing

affording opportunity in this regard was not even produced before

the Court, however, after sufficient prodding by the Court,

document dated 13.07.2022 was produced before the Court

during course of arguments on 02.05.2023 indicating purported

grant of opportunity to make a representation, however, the

indications made in the said document / communication falls short

of a fair opportunity to make a representation, rather the same is

contrary to the provisions of Section 9(1) of the Act.

9. Further submissions have been made that the State

Government while granting approval under Section 3(3) of the

Act, has to apply its mind to the facts of the case and it cannot

pass a mechanical order granting approval to the order of

preventive detention and on account of non-application of mind by

the State Government while passing the order dated 21.07.2022

(Annex.A/2), the same stands vitiated and consequently, the

detention becomes illegal.

10. Submissions were also made that no material was

produced before the Court indicating communication of the order

dated 21.09.2022 (Annex.A/2) to the detenue though an

endorsement requiring such communication has been made on the

order requiring the authorities to serve a copy of the order on the

detenue and for non-supply of the said order also, the detention

stands vitiated.

11. Learned counsel further emphasized that the provisions

of the Act requires passing of the order of preventive detention, in

case, the detenue is acting in any manner prejudicial to the

[2023/RJJD/016590] (5 of 21) [HC-3/2023]

maintenance of 'public order'. Submissions have been made that

the grounds indicated for ordering of preventive detention of the

detenue, are mere cases pertaining to the maintenance of 'law &

order' and therefore, as the requirement of prejudice to the

maintenance of public order itself has not been fulfilled, the order

of detention is illegal.

12. It was emphasized that only because 22 cases have

been registered against the detenue between the period 2014 to

2022, in which 20 cases pertain to period between 2014 to 2020

and 01 case each in the year 2021 & 2022, cannot be a reason

enough for placing the detenue under preventive detention, which

essentially is a case of maintaining law & order and has nothing to

do the public order and on that count also, the action of the

respondents in ordering for preventive detention of the detenue

deserves to be quashed and set-aside.

13. Reliance was placed on Mallada K Sri Ram v. State of

Telangana & Ors. : Cr. Appeal No.561/2022, decided on

04.04.2022 by the Hon'ble Supreme Court; Chandrashekhar v.

State of Rajasthan & Ors. : D.B. Habeas Corpus No.50/2017,

decided on 22.05.2017; Icchu Devi Choraria v. Union of India :

AIR 1980 SC 1983; Rajesh Sharma @ Raju Pandit v. State of

Rajasthan & Ors.: D.B. Habeas Corpus Writ Petition No.235/2016,

decided on 31.03.2017 (At Jaipur Bench) and Ankit Ashok Jalan v.

Union of India & Ors. : Writ Petition (Criminal) No.362/2019,

decided on 04.03.2020 by the Hon'ble Supreme Court.

14. Learned AAG vehemently opposed the submissions

made. It was submitted with reference to the provisions of

[2023/RJJD/016590] (6 of 21) [HC-3/2023]

Section 2(c) of the Act that the detenue squarely falls within the

definition of 'dangerous person', inasmuch as, out of the cases

pending against him, 13 cases pertains to offences punishable

under Chaper-XVI or Chapter-XVII of the IPC and 06 cases pertain

to offences punishable under Chapter-V of the Arms Act and as

such, the submissions made to the contrary, have no substance.

15. It was submitted that the word 'public order' has been

assigned the same meaning as under sub-section (4) of Section 3,

which is a deeming provision and provides that it would be

deemed that the person is acting in a manner prejudicial to the

maintenance of public order when such person is engaged in or is

making preparation for engaging in any activities, inter-alia, as

dangerous person and the explanation provides that if the

activities directly or indirectly are causing or likely to cause any

harm, danger or alarm or feeling of insecurity among the public at

large or any section thereof, the public order shall be deemed to

have been affected adversely and therefore, the plea in this

regard has no substance. It was emphasized that merely because

matters are pending and the detenue has so far not been

convicted cannot by itself be a reason to hold that the detenue is

not a dangerous person in view of express definition in this

regard.

16. Further submissions were made that the communication

dated 13.07.2022 filed on 02.05.2023 clearly shows that the

detenue was afforded the earliest opportunity of making a

representation against the order to the State Government, receipt

of which communication is clearly reflected on the said

[2023/RJJD/016590] (7 of 21) [HC-3/2023]

communication and therefore, the plea raised regarding non-

compliance of provision of Section 9(1) of the Act has no

substance.

17. Further submissions were made that admittedly, no

representation was made by the detenue against the order dated

13.07.2022 and as such, in the order passed by the State

Government approving the order dated 21.07.2022 (Annex.A/2),

there was no necessity to make any reference regarding fling /

non-filing of the representation.

18. Further submissions were made that the timelines as

provided under the Act regarding approval by the State

Government, referring the matter to the Advisory Board and

passing of the order by the Advisory Board have been specifically

adhered to and therefore, no case is made out for any kind of

violation of provisions of the Act so as to provide any ground to

the detenue to seek its quashing by this Court and therefore, the

petition deserves dismissal.

19. Submissions were also made that the plea raised

pertaining to the cases against the detenue being that of

maintenance of law & order and not prejudicial to public order has

no substance in view of the express provisions and the judgments

relied on behalf of the detenue have no application to the facts of

the present case. It was prayed that the petition be dismissed.

20. We have considered the submissions made by learned

counsel for the parties and have perused the material available on

record.

[2023/RJJD/016590] (8 of 21) [HC-3/2023]

21. At the outset, it would be appropriate to notice the

observations made by the Hon'ble Supreme Court in Pramod

Singla v. Union of India & Ors. : Criminal Appeal No.1051/2023,

decided on 10.04.2023, which reads as under:-

"21. Before we deal with the issues framed, we find it important to note that preventive detention laws in India are a colonial legacy, and have a great potential to be abused and misused. Laws that have the ability to confer arbitrary powers to the state, must in all circumstances, be very critically examined, and must be used only in the rarest of rare cases. In cases of preventive detention, where the detenue is held in arrest not for a crime he has committed, but for a potential crime he may commit, the Courts must always give every benefit of doubt in favour of the detenue, and even the slightest of errors in procedural compliances must result in favour of the detenue."

22. In view of the above settled position, the present matter

needs to be examined. It would be appropriate to notice few

provisions of the Act, which reads as under :-

"2. Definitions.- In this Act, unless the context otherwise requires :-

...... ...... ...... ...... ...... ...... ......

(c) "dangerous Person" means a person, who either by himself or as member or leader of a gang, habitually commits, or a attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 or any of the offences punishable under Chapter V of the Arms Act, 1959 or any of the offences punishable under first proviso to sub-section (1), and sub-section (1A), of section 51 of the Wild life (Protection) Act, 1972 or any offence punishable under section 67 of the Information Technology Act, 2000.

...... ...... ...... ...... ...... ...... ......

(j) "public order" shall have the same meaning as assigned to it under sub-section (4) of section 3.

3. Power to make orders detaining certain persons.- (1) The State Government may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, 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 within the local limits of the jurisdiction of a District Magistrate, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that the District Magistrate, may also, if

[2023/RJJD/016590] (9 of 21) [HC-3/2023]

satisfied as provided in sub-section (1), exercise the powers conferred by the said sub-section.

(3) 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.

(4) For the purpose of this section, a person shall be deemed to be "acting in any manner prejudicial to the maintenance of public order" when such person is engaged in or is making preparation for engaging in any activities whether as a boot-legger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.

Explanation. - For the purpose of this sub-section Public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the public at large or any section thereof or a grave or widespread danger to life, property or public health.

9. Grounds of order of detention to be disclosed to detenu.- (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."

23. A perusal of the provisions of Section 3 reveals that if

the State Government is satisfied with respect to any person that

for preventing him from acting in any manner prejudicial to the

maintenance of public order, it is necessary to do so, it can make

an order directing that such person be detained.

24. Sub-Section (2) of Section 3 of the Act provides for

delegation of power to the District Magistrate.

[2023/RJJD/016590] (10 of 21) [HC-3/2023]

25. Sub-Section (3) of Section 3 of the Act provides that if

an order is made under Section 3(2), the authorized officer shall

forthwith report the fact to the State Government together with

the grounds and that no such order shall remain in force for more

than twelve days after the making thereof, unless, in the

meanwhile, it has been approved by the State Government.

26. For the purpose of grant of approval by the State

Government, Section 9 of the Act provides that when a person is

detained in pursuance of an order passed under Section 3(2) of

the Act, the authority making the order shall as soon as may be

but not later than three days from the date of detention

communicate to the detenue 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. The

provision is clear and unambiguous requiring the authority to

afford the detenue the earliest opportunity of making a

representation against the order to the State Government.

27. The communication made to the detenue on 13.07.2022,

which communication has been produced by the respondents, as

submitted by learned counsel for the detenue, after much

prodding by the Court, during course of hearing, inter-alia, reads

as under :-

"U;k;ky; ftyk eftLVªsV] ckM+esj Øekad% [email protected]@946 fnukad % 13-7-22 okLrs %& HkSjkjke iq= lksukjke tkfr tkV fuoklh lksfM;kj iqfyl Fkkuk pkSgVu ftyk ckM+esj

fo'k; % jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e 2006 dh /kkjk 3¼2½ ds rgr fu:) djus ds laca/k esaA

[2023/RJJD/016590] (11 of 21) [HC-3/2023]

bl U;k;ky; ds vkns"k fnukad 13-07-2022 ds }kjk vkidks jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 dh /kkjk 3¼2½ ds rgr fu:) fd;k tkdj dsUnzh; dkjkx`g tks/kiqj esa j[ks tkus dk fu.kZ; fy;k x;k gSA vkidks fu:) fd;s tkus ds dkj.kksa o vk/kkj ds nLrkost ¼ifjokn dh izfr½ bl i= ds layXu izsf'kr fd;s tk jgs gS ftudks izkIr dj jlhn nsosA vki fu:) fd;s tkus ds fo:) ;fn dksbZ vH;kosnu jkT; [email protected] [email protected] mPp U;k;ky; vFkok v/kks gLrk{kjdrkZ dks izLrqr djuk pkgs rks v/kh{kd dsUnzh; dkjkx`g tks/kiqj ds ek/;e ls izsf'kr dj ldrs gSA

layXu & mi;qZDrkuqlkj [email protected]& ¼yksd ca/kq½ ftyk eftLVªsV] ckM+esj ,d dkWih izkIr dh [email protected]& Hksjkjke"

28. The communication bears receipt from the detenue. A

perusal of the above communication reveals that the detenue has

been told that against the detention, if he wants to make any

representation to the State Government / Advisory Board /

Rajasthan High Court or to the undersigned, he can send the same

through the Superintendent, Central Jail, Jodhpur.

29. The indication made in the communication, apparently, is

contrary to the requirements of Section 9(1) of the Act, which

requires affording of the opportunity to make a representation

against the order to the State Government. The indication made in

the communication regarding making of representation, inter-alia,

also to the Advisory Board / Rajasthan High Court and to the

undersigned i.e. District Magistrate, Barmer, was absolutely

contrary to the provisions of the Act and rather misplaced and

likely to create confusion in the mind of the detenue, inasmuch as,

at the stage when the communication was made i.e. on the date

of detention itself, requiring the detenue to make a representation

[2023/RJJD/016590] (12 of 21) [HC-3/2023]

to the Advisory Board / Rajasthan High Court and even to the

District Magistrate, who himself had passed the order placing the

detenue under detention, was wholly unnecessary. In fact, there

was no occasion for the District Magistrate to indicate making of

representation to the said authorities at the said stage because

unless the detention was approved by the State Government in

terms of Section 3(3) of the Act, there was no question of the

detenue making a representation to the Advisory Board. Further at

no stage the Rajasthan High Court comes into picture, so as to

require the detenue to make a representation to the High Court.

30. The parameters for compliance of provisions of Section

9(1) of the Act regarding making of the representation to the

State Government have been laid down in the case of Omprakash

@ Omi (supra), wherein after referring to provisions of Section 9,

it has been laid down as under :-

"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 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

[2023/RJJD/016590] (13 of 21) [HC-3/2023]

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 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 detenue on account of non-compliance of the mandatory provisions contained in Section 9 of the Act of 2006. The detenue 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."

31. The Division Bench even when the relatives of the

detenue had made a representation to the State Government, on

account of non-compliance of provisions of Section 9 of the Act

came to the conclusion that serious prejudice was caused to the

[2023/RJJD/016590] (14 of 21) [HC-3/2023]

detenue therein on account of non-compliance of the provisions

rendering the detention as illegal and unconstitutional.

32. Further, in the present case the communication does not

indicate the time within which the detenue was required to make a

representation, if any, which was necessary as the State was

required to pass an order within 12 days of passing of the order of

detention, which non-indication also is a serious lapse.

33. As noticed herein-before, as the communication made to

the detenue dated 13.07.2022 does not comply with the

requirements of Section 9(1) of the Act and was likely to cause

confusion and was beyond the scope of a fair opportunity of

making representation at the stage when the detenue was called

upon to make a representation, that also without indicating time

within which the representation was to be made, it cannot be said

that the provisions of Section 9(1) of the Act have been complied

with in letter and spirit.

34. The order passed by the State Government dated

21.07.2022 (Annex.A/2), inter-alia, reads as under :-

"jktLFkku ljdkj x`g ¼xzqi&9½ foHkkx Øekad % i-36¼10½x`g&[email protected] t;iqj] fnukad % 21 JUL. 2022 vkns"k ftyk eftLVªsV ckM+esj }kjk jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 ¼2008 dk vf/kfu;e la[;k&1½ dh /kkjk 3 dh mi/kkjk ¼1½ ds v/khu xSj lk;y HkSjkjke iq= lksukjke tkfr tkV fuoklh lksfM;kj iqfyl Fkkuk pkSgVu ftyk ckM+esj ds fo:) fu:f) vkns"k Øekad% fofo/k QkStnkjh izdj.k la- [email protected] fnukad 13&07&2022 ikfjr fd;k x;k gSA jkT; ljdkj dk lek/kku gks x;k gS fd xSj lk;y HkSjkjke iq= lksukjke tkfr tkV fuoklh lksfM;kj iqfyl Fkkuk pkSgVu ftyk ckM+esj ds fo:) fu:f) vkns"k ikfjr djus ds fy, i;kZIr vk/kkj gSA vr% jkT; ljdkj }kjk jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 ¼2008 dk vf/kfu;e la[;k&1½ dh /kkjk 3

[2023/RJJD/016590] (15 of 21) [HC-3/2023]

dh mi /kkjk ¼3½ ds vUrxZr ftyk eftLVªsV ckM+esj }kjk ikfjr fd;s x;s vkns"k fnukad 13&07&2022 dk vuqeksnu fd;k tkrk gSA

jkT;iky dh vkKk ls] [email protected]& ¼eqds"k ikjhd½ mi "kklu lfpo izfrfyfi & 1- ftyk eftLVsªV] ckM+esjA 2- v/kh{kd] dsUnzh; dkjkx`g] tks/kiqj dks vkns"k dh rhu izfr;ka fu'iknu gsrq izsf'kr gSA d`i;k bl vkns"k dh izfr fu:f) dks nh tkos] vkns"k dh ,d izfr ij lacaf/kr O;fDr ls izkfIr dh jlhn ysdj mls izekf.kr dh tkdj fHktokosa rFkk rhljh izfr vius dk;kZy; vfHkys[k esa layXu djsA [email protected]& mi "kklu lfpo"

35. As noticed herein-before, the provisions of Section 3(3)

of the Act requires approval of the order passed under Section

3(2) of the Act by an authorised officer by the State Government

within twelve days of making of the said order and as noticed

Section 9(1) of the Act requires providing of an opportunity to the

detenue to make a representation against the order to the State

Government.

36. A perusal of the above order dated 21.07.2022 would

reveal that the same has been passed within eight days of passing

of the order of detention dated 13.07.2022. The order nowhere

indicates that the authority passing the order was even aware of

the right of the detenue to make a representation, inasmuch as,

there is no reference worth the name in the above order regarding

the fact of providing an opportunity to the detenue to make a

representation under Section 9(1) of the Act and that the detenue

had not made any representation. The aspect of passing the order

within eight days, though the same could have been made within

twelve days also assumes significance in a case where no time

[2023/RJJD/016590] (16 of 21) [HC-3/2023]

limit in the communication was indicated and no representation

has been made, inasmuch as, no time limit is fixed under the

provisions of Section 9(1) of the Act to make a representation and

therefore, the same could have been made within twelve days of

passing of the order of detention and the authority was required

to consider the said representation before approving the said

order of detention.

37. Things would be different where the representation has

been made by the detenue, then taking the same into

consideration the order could be passed any time within the said

period of twelve days, however, where no representation is made,

the authority is required to wait and / or notice in its order that

the detenue refused to make any representation, else the

authority granting approval under Section 3(3) of the Act can very

well pass the order within no time of passing of the order of

detention, negating the very opportunity to the detenue to make a

representation.

38. The very fact that the authority passing the order dated

21.07.2022 has not even noticed the requirement / grant of

opportunity to the detenue and that no such representation has

been made, clearly shows that the order dated 21.07.2022

(Annex.A/2) has been mechanically passed by the said authority

oblivious of the requirements of provisions of Section 9(1) of the

Act and as such, the order stands vitiated.

39. Though the order dated 21.07.2022 (Annex.A/2) passed

by the State Government, bears an endorsement that copy of the

order be supplied to the detenue and a receipt be taken from him

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and be sent after attestation to the authority passing the order,

and despite specific plea raised regarding non-service of the order

dated 21.07.2022 (Annex.A/2) on the detenue and the detenue

becoming aware of passing of the order dated 21.07.2022 only on

passing of the order dated 21.09.2022 (Annex.3) under Section

13(1) of the Act after approval by the Advisory Board, nothing has

been placed on record to indicate that the order dated 21.07.2022

had been served on the detenue.

40. The non-service of the order dated 21.07.2022

(Annex.A/2) on the detenue, also is fatal, inasmuch as, the same

has deprived the detenue's legal right to question the validity of

the said order dated 21.07.2022 at the relevant stage, which

ultimately resulted in continuation of his detention beyond twelve

days till the order under Section 13(1) of the Act was passed on

21.09.2022 (Annex.3).

41. Coming to the aspect of placing the detenue under

preventive detention, the complaint Annex.1, inter-alia, indicates

the following for seeking the detention :

"mDr xSj lk;y ds fo:) vU; izpfyr dkuwuksa o fujks/kkRed dk;Zokfg;ka djus ij Hkh mldh vijkf/kd xfrfof/k;ksa ij vadq"k j[kk tkuk laHko ugha gks jgk gSA xSj lk;y HkSjkjke [krjukd O;fDr gS rFkk orZeku esa U;k;ky; }kjk tekur ij gSA mlds }kjk U;kf;d vfHkj{kk ls ckgj vkdj iqu% iqoZ dh Hkkafr vkijkf/kd xfrfof/k;ka dkfjr djus dh iw.kZ laHkkouk gS rFkk ;g "kDl cnyk nsus dh Hkkouk ls yksxksa dks Mjk /kedk dj vijk/k dkfjr djus dk vH;Lrh gSA mDr xSj lk;y dh vkijkf/kd xfrfof/k;ksa dks jksd ikuk lkekU; dkuwu dh ifjf/k esa lEHko ugha gSA ,slh fLFkfr esa xSj lk;y dk LoaPNn jguk lkekU; yksd O;oLFkk o jkT; dh vkarfjd lqj{kk ds fy;s [krjukd gSA bldh lekt fojks/kh vijkf/kd xfrfof/k;ksa ij jksd yxkus dh furkUr vko";drk gSA ,slh voLFkk esa xSj lk;y dks vf/kdkf/kd vof/k ds fy;s vUrxZr /kkjk 2 ¼[k½¼x½@3 jktLFkku lekt fojks/kh fØ;k&dyki fuokj.k vf/kfu;e 2006 ds rgr fu:) j[kuk yksd O;oLFkk ds fy, furkUr vko";d gSA"

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42. A bare look at the complaint Annex.1 made by the

Superintendent of Police, Barmer indicates that after referring to

the various pending cases against the detenue, wherein it is

indicated that in 19 cases challan has been filed, in 01 case he has

been acquitted giving benefit of doubt and that he was on bail

granted by the competent court it has been indicated that as

preventing the criminal activities of the detenue within general law

was not possible, the detention was sought.

43. The Hon'ble Supreme Court in Vijay Narain v. State of

Bihar : 1984(3) SCC 14 indicated that when a person is enlarged

on bail by a competent Court, great caution should be exercised in

scrutinizing the validity of an order of preventive detention, which

is based on the same charge, which is to be tried by the criminal

Court and that the order does not refer to any application for

cancellation of bail having been filed by the State authorities.

44. In Shaik Nazeen v. State of Telangana & Ors. : Criminal

Appeal No.908 of 2022, decided on 22.06.2022, the Hon'ble

Supreme Court made following observations :-

"17. In any case, the State is not without a remedy, as in case the detenu is much a menace to the society as is being alleged, then the prosecution should seek for the cancellation of his bail and/or move an appeal to the Higher Court. But definitely seeking shelter under the preventive detention law is not the proper remedy under the facts and circumstances of the case.

18. In fact, in a recent decision of this Court, the Court had to make an observation regarding the routine and unjustified use of the Preventive Detention Law in the State of Telangana. This has been done in the case of Mallada K. Sri Ram Vs. The State of Telangana & Ors. 2022 6 SCALE 50, it was stated as under :

"17. It is also relevant to note, that in the last five years, this Court has quashed over five detention orders under the Telangana Act of 1986 for inter alia incorrectly applying the standard for maintenance of public order and relying on stale materials while passing the orders of detention. At

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least ten detention orders under the Telangana Act of 1986 have been set aside by the High Court of Telangana in the last one year itself. These numbers evince a callous exercise of the exceptional power of preventive detention by the detaining authorities and the respondent-state. We direct the respondents to take stock of challenges to detention orders pending before the Advisory Board, High Court and Supreme Court and evaluate the fairness of the detention order against lawful standards."

(emphasis supplied)

45. Further the distinction between a disturbance to 'law and

order' and a disturbance to 'public order' has been noticed by the

Hon'ble Supreme Court in the case of Mallada K Sri Ram (supra)

as under :-

"15. A mere apprehension of a breach of law and order is not sufficient to meet the standard of adversely affecting the "maintenance of public order". In this case, the apprehension of a disturbance to public order owing to a crime that was reported over seven months prior to the detention order has no basis in fact. The apprehension of an adverse impact to public order is a mere surmise of the detaining authority, especially when there have been no reports of unrest since the detenu was released on bail on 8 January 2021 and detained with effect from 26 June 2021. The nature of the allegations against the detenu are grave. However, the personal liberty of an accused cannot be sacrificed on the altar of preventive detention merely because a person is implicated in a criminal proceeding. The powers of preventive detention are exceptional and even draconian. Tracing their origin to the colonial era, they have been continued with strict constitutional safeguards against abuse. Article 22 of the Constitution was specifically inserted and extensively debated in the Constituent Assembly to ensure that the exceptional powers of preventive detention do not devolve into a draconian and arbitrary exercise of state authority. The case at hand is a clear example of non-application of mind to material circumstances having a bearing on the subjective satisfaction of the detaining authority. The two FIRs which were registered against the detenu are capable of being dealt by the ordinary course of criminal law."

46. In the case of Chandrashekhar (supra), a Division Bench

of this Court noticing registration of 15 cases and 02 preventive

proceedings under Sections 110 & 107 Cr.P.C., against the

petitioner therein, came to the following conclusion :-

"Upon perusal of the item no.1 to 7 it is obvious that in five cases detenue Abhimanyu @ Dhabiya was acquitted

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from the charges levelled against him either on compromise or after facing and in two cases he was convicted in the year 2006-07 and he has served whatever punishment made against him. Admittedly, seven cases are pending against the detenue Abhimanyu @ Dhabiya and in one case investigation is going on. The cases pending against the detenue Abhimanyu @ Dhabiya are mostly relates to the offence under Sections 323, 325 and 341 IPC and in three cases, charge-sheet was filed under Section 307, 149/34 IPC and those cases are still pending in which detenue Abhimanyu @ Dhabiya has already been released on bail. We have perused the definition of "dangerous person" enumerated in the Act of 2006, so also, considered the facts of all the cases registered against the detenue Abhimanyu @ Dhabiya. In our opinion, seven cases pending against the detenue Abhimanyu @ Dhabiya are mostly for the offences under Sections 323, 325, 341 and 147 IPC and in three cases the charge-sheet has been filed under Section 307 IPC with the aid of Section 149 IPC in which the detenue Abhimanyu @ Dhabiya has already been released on bail, upon consideration of complaint submitted by the respondent no.4 before Police Commissioner, we are of the opinion that seriousness of the offences is required to be seen before passing any order of detention. In most of the pending cases are for bailable offences, three cases are registered for non-bailable offence in which the detenue Abhimanyu @ Dhabiya has already been released on bail and still facing trial, therefore, we are of the opinion that there is no valid justification for passing detention order against the detenue Abhimanyu @ Dhabiya for one year. In our opinion, at the time of judicial scrutiny right of liberty of a citizen is required to be seen as per facts, there is no dispute that out of 15 cases, 7 cases has already been decided upto the year 2012 and most of the pending cases are related with the bailable offences, therefore, it cannot be said that case of detenue Abhimanyu @ Dhabiya falls under the definition of "dangerous person" and become problem for the law and order situation.

The criminal activities upon which action has been taken cannot be based so as to consider detenue Abhimanyu @ Dhabiya as "dangerous person" at this stage. It is true that an accused granted bail cannot misuse the benefit of bail and required to maintain peace, at the same time, it cannot be said that number of cases of private quarrel registered against the detenue Abhimanyu @ Dhabiya can be considered for passing order of detention for one year. The seriousness of offense is required to be seen.

In the totality of the circumstances, we are of the firm opinion that order of detention is not based upon justified reasons so as to achieve the object to maintain peace."

47. In the present case, the fact that the detenue has been

released on bail and the authorities, by indicating their

helplessness in maintaining the law and order has sought the

preventive detention of the detenue, which reason cannot form

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basis for coming to the conclusion that the detention of the

detenue was necessary with a view to preventing him from acting

in any manner prejudicial to the maintenance of public order.

48. In view of above discussion, it is apparent that the

detenue was not afforded adequate opportunity to make a

representation as required under Section 9(1) of the Act, the

order dated 21.07.2022 has been passed by the State