Rajasthan High Court - Jodhpur

Kamal Singh vs State Of Rajasthan ... on 11 October, 2023

Bench: Arun Bhansali, Nupur Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Habeas Corpus Petition No. 232/2023

Kamal Singh S/o Jetmal, Aged About 27 Years, Ward Number 36, Ray Colony, Sardarpura, Barmer (Raj.).

----Petitioner Versus

1. 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.).

                                                                    ----Respondents


For Petitioner(s)             :    Mr. Aditya Sharma
                                   Mr. Gajendra Singh
For Respondent(s)             :    Mr. M.A. Siddiqui, GA-cum-AAG with
                                   Mr. Rohit Mutha



            HON'BLE MR. JUSTICE ARUN BHANSALI
               HON'BLE DR. JUSTICE NUPUR BHATI

                                        Order

11/10/2023

1. The present writ petition, in the nature of habeas corpus, has

been filed by the petitioner inter alia questioning the validity of

order dated 20.03.2023 (Annexure-4) passed by the respondent

No.1 and order dated 30.01.2023 (Annexure-2) passed by the

respondent No.2 whereby his brother Ummed Singh, has been

ordered to be placed under preventive detention under the

provisions of Rajasthan Prevention of Anti-Social Activities, Act,

2006 (RAJPASA).

2. Learned counsel for the petitioner made submissions that the

respondents though initiated the process by way of an order

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passed by the District Collector on 09.01.2023 for placing the

petitioner under detention; ultimately the order dated 30.01.2023

(Annexure-2) was passed inter alia indicating that the petitioner

being a dangerous person under the Provisions of RAJPASA be

placed under preventive detention.

3. The order came to be approved by the State Government on

07.02.2023 under the provisions of Section 3 (3) of the Act.

Whereafter, the case was referred to the Advisory Board which by

its order dated 11.03.2023 approved the preventive detention.

Ultimately the order dated 20.03.2023 (Annexure-19) came to be

passed placing the petitioner under preventive detention till

29.01.2024.

4. Learned counsel for the petitioner made submissions that the

action of the respondents is ex-facie contrary to the provisions of

the Act, wherein the petitioner has been deprived of a proper

opportunity of making representation against the order of

detention inasmuch as the notice given to the petitioner dated

30.01.2023 is absolutely vague, which did not indicate the

authority to which the representation was to be made and also did

not fix the time frame within which the representation was to be

made.

5. Further submissions have been made that the State

Government, within seven days without waiting for the

representation to be made by the petitioner, has passed the order

dated 07.02.2023 approving the order passed by the District

Collector, which is also contrary to the provisions of the Act,

inasmuch as, the same has been passed in a mechanical manner

without even making a reference regarding the requirement of

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filing the representation against the proposed preventive detention

and, therefore, the orders impugned deserve to be quashed and

set aside.

6. Learned counsel for the petitioner made submissions that the

issue raised in the present petition is squarely covered by the

order in the case of Mangi Kumari Vs. State of Rajasthan & Ors.:

D.B. Habeas Corpus Petition No.3/2023 decided on 25.05.2023,

wherein in almost identical circumstances this Court inter alia

came to the conclusion that for lack of proper opportunity to the

detenue, the order of detentions were bad and, therefore, orders

impugned deserve to be quashed and set aside.

7. Learned AAG made submissions that the petitioner was

afforded adequate opportunity of making the representation and

as he has failed to make any representation, the respondents

were justified in passing the order dated 07.02.2023 and no

exception can be taken to the said aspect. The petitioner being a

dangerous person as defined under provisions of the Act, is not

entitled to any relief from this Court and the petition deserves

dismissal.

8. We have considered the submissions made by learned

counsel for the parties and perused the material available on

record. The notice issued to the petitioner reads as under:-

"dk;kZy; ftyk eftLVsªV] ckM+esj Øekad % U;kf;d@2023@433 fnukad% 30-01-2023

okLrs%& mEesnflag mQZ mEesfn;k iq= tsrkjke mQZ tsrekyflag tkfr jko.kk jktiwr] mez 35 lky] fuoklh jk;dkWyksuh ckM+esj] iqfyl Fkkuk dksrokyh ckM+esj

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fo'k; %& jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e 2006 dh /kkjk 3 ¼2½ ds rgr fu:) djus ds laca/k esaA bl U;k;ky; ds vkns"k fnukad 30-01-2023 ds }kjk vkidks jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 dh /kkjk 3 ¼2½ ds rgr fu:) fd;k tkdj dsfUnz; 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 gSa ftudks izkIr dj jlhn nsosaA vki fu:) fd;s tkus ds fo:) ;fn dksbZ vH;kosnu jkT; ljdkj@lykgdkj e.My@jktLFkku mPp U;k;ky; vFkok v/kksgLrk{kjdrkZ dks izLrqr djuk pkgsa rks v/kh{kd dsUnzh; dkjkx`g tks/kiqj ds ek/;e ls izsf'kr dj ldrs gSaA layXu& mi;qZDrkuqlkj ¼yksd ca/kq½ ftyk eftLVªsV] ckM+esj"

9. The order of the State Government dated 07.02.2023 reads

as under:-

"jktLFkku ljdkj x`g ¼xzqi&9½ foHkkx Øekad% i-36¼1½x`g&9@2023 t;iqj] fnukad % 7 FEB 2023 vkns"k ftyk eftLVsªV] 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 Jh mEesn flag mQZ mEesfn;k iq= Jh tsrkjke mQZ tSreky flag] tkfr jko.kk jktiwr] mez 35 lky] fuoklh jk; dkWyksuh ckM+esj] iqfyl Fkkuk dksrokyh] ckM+esj ds fo:) fu:f) vkns"k Øekad% U;kf;d@2023@430 fnukad 30&01&2023 ikfjr fd;k x;k gSA jkT; ljdkj dk lek/kku gks x;k gS fd Jh mEesn flag mQZ mEesfn;k iq= Jh tsrkjke mQZ tSreky flag tkfr jko.kk jktiwr] mez 35 lky] fuoklh jk; dkWyksuh ckM+esj] iqfyl Fkkuk dksrokyh] ckMesj 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 dh mi /kkjk ¼3½ ds vUrxZr ftyk eftLVsªV] ckM+esj }kjk ikfjr fd;s x;s vkns"k fnukad 30&01&2023 dk vuqeksnu fd;k tkrk gSA jkT;iky dh vkKk ls]

¼lhek dqekj½ la;qDr "kklu lfpo izfrfyfi& 1- ftyk eftLVªsV] ckM+esjA 2- v/kh{kd] dsUnzh; dkjkx`g] tks/kiqj dks vkns"k dh rhu izfr;ka fu'iknu gsrq izsf'kr gSaA d`i;k bl vkns"k dh izfr fu:f) dks nh

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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 djsaA la;qDr "kklu lfpo"

10. On the aspects raised by learned counsel for the petitioner,

this Court, in the case of Mangi Kumari (supra) inter alia came to

the following conclusion:-

"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% okpd@2022@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

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; ljdkj@lykgdkj e.My@jktLFkku 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 lgh@& ¼yksd ca/kq½ ftyk eftLVªsV] ckM+esj ,d dkWih izkIr dh lgh@& 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

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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 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 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

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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 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

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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&9@2022 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- 02@2022 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 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] lgh@& 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 lgh@& 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

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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 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."

11. Both the issues raised by learned counsel for the petitioner

seeking to question the validity of the orders passed by the

respondents, stand squarely covered by the judgment in the case

of Mangi Kumari (supra) wherein it has been laid down that the

nature of notice dated 30.01.2023 issued to the petitioner is not in

consonance with the provisions of the Section 9(1) of the Act and

that the order dated 07.02.2023 has been passed mechanically,

dehors the requirements of provisions of Section 9(1) of the Act,

which stand initiated.

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12. In view of the above discussion, the detention of the

petitioner pursuant to the orders passed by the State, cannot be