Rajasthan High Court - Jodhpur
Jaswant Kanwar vs The State Of Rajasthan ... on 5 March, 2024
Bench: Dinesh Mehta, Yogendra Kumar Purohit
[2024:RJ-JD:10908-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus Petition No. 404/2023
Jaswant Kanwar W/o Jabbar Singh, Aged About 57 Years, R/o
Village Manihari, Tehsil And District Pali (Raj.)
----Petitioner
Versus
1. The State Of Rajasthan, Through Secretary, Department
Of Home, Government Of Rajasthan, Secretariat, Jaipur
(Raj.)
2. The District Collector And District Magistrate, Pali (Raj.).
3. Superintendent Of Police, District Pali (Raj.).
----Respondents
For Petitioner(s) : Mr. Gajendra Kumar Rinwa
Mr. Aditya Sharma
For Respondent(s) : Mr. Anil Joshi, GA cum AAG
HON'BLE MR. JUSTICE DINESH MEHTA
HON'BLE MR. JUSTICE YOGENDRA KUMAR PUROHIT
Order
05/03/2024
1. By way of present writ petition, the petitioner has challenged
the order dated 11.08.2023 (Annexure-1) passed by respondent
No.2 and order dated 21.09.2023 (Annexure-4) passed by
respondent No.1, whereby her husband Jabbar Singh (hereinafter
referred to as "detenue"), has been detained.
2. Apprising the Court about the backdrop facts, learned
counsel for the petitioner submitted that on 11.08.2023, the
respondent No.2 District Magistrate, Pali passed an order of
detention while exercising powers under Sub-Section (2) of
Section 3 of the Rajasthan Prevention of Anti-Social Activities Act,
2006 (hereinafter referred as "RAJPASA Act Or the Act of 2006").
[2024:RJ-JD:10908-DB] (2 of 5) [HC-404/2023]
In furtherance thereof, the petitioner's husband was immediately
detained. A notice/communication of even date came to be served
upon the detenue, in which, it was stated that in case the detenue
wanted to make any representation before the State Government/
Advisory Committee/ Rajasthan High Court or the District
Magistrate, the same be sent through the Superintendent, Central
Jail, Jodhpur. Whereafter, by way of order dated 22.08.2023, the
State Government approved the detention ordered by the District
Collector, as required under Sub-Section (3) of Section 3 of
RAJPASA Act.
3. Learned counsel argued that the order of the State
Government confirming the detention is absolutely illegal,
inasmuch as the communication dated 11.08.2023 is contrary to
the provisions of Section 3 (3) of RAJPASA Act and so also
contrary to mandate of Section 9 of the RAJPASA Act. By inviting
Court's attention towards the provisions of Sub-Section (3) of
Section 3 and Section 9 of the RAJPASA Act, learned counsel
argued that the communication dated 11.08.2023 neither clearly
specifies the authority to which such representation was to be
made nor did it inform the detenue about his statutory right to
make a representation. Learned counsel submitted that the
respondents have observed a mere formality and the manner in
which the communication dated 11.08.2023 had been drafted,
would create a natural confusion in the mind of a detenue as to
what is required of him to do. Learned counsel submitted that the
impugned communication dated 11.08.2023 is clearly contrary to
the statutory provision so also law laid down by Division Bench
judgment of this Court in the case of Mangi Kumari Vs. State of
[2024:RJ-JD:10908-DB] (3 of 5) [HC-404/2023]
Rajasthan & Ors. : D.B.Habeas Corpus Petition No.3/2023 decided
on 25.05.2023. Learned counsel submitted that as the notice was
laconic and the detenue was not provided proper opportunity, the
proceedings in question are fundamentally void and therefore, the
final order dated 21.09.2023 passed under Section 13 (1) of the
Act of 2006 is void and liable to be quashed.
4. Mr. Anil Joshi, AAG for the respondent State could neither
dispute the legal position as has been settled by the Division
Bench of this Court in the case of Mangi Kumari (supra) nor could
he otherwise justify laconic and inadequately worded
communication dated 11.08.2023.
5. Heard learned counsel for the parties.
6. The communication dated 11.08.2023 sent by the District
Magistrate to the detenue, which is subject matter of the present
dispute, reads thus :-
"mijksDr fo"k;kUrxZr bl i= ds layXu jktLFkku lekt fojks/kh fØ;k dyki vf/kfu;e
¼jktiklk½ 2006 dh /kkjk 3 ds rgr fu:) fd;k tkdj dsUnzh; dkjkx`g tks/kiqj esa j[kk
x;k gSA vkidksa fu:) fd;s tkus ds vk/kkj bl i= ds layXu izsf"kr fd;s tk jgs gSA
ftldksa izkIr dj jlhn nsosa] vkidks fu:) fd;s tkus ds fo:) ;fn dksbZ v";kosnu jkT;
ljdkj@lykgdkj e.My@ekuuh; jktLFkku mPp U;k;ky; vFkok v/kksgLrk{kjdrkZ dks
izLrqr djuk pkgrs gS rks v/kh{kd dsUnzh; dkjkx`g tks/kiqj ds ek/;e ls izLrqr dj ldrs
gSA "
7. A simple look at the provisions of Sub-Section (3) of Section
3 and Section 9 of the RAJPASA Act and the Division Bench
judgment of this Court in Mangi Kumari (supra) shows that the
impugned communication is illegal and because of such laconic
communication, the detenue's right to represent before the State
Government before the order dated 21.08.2023 was passed, has
been practically taken away.
[2024:RJ-JD:10908-DB] (4 of 5) [HC-404/2023]
8. A perusal of the proceedings of the Advisory Board reveals
that no representation has been filed by the detenue. He was of
course produced before the Board through Video Conferencing,
during which he submitted that he has falsely been implicated; the
Advisory Board, thus found the same to be in accordance with law.
9. A close and combined reading of the provisions contained in
Sections 3 (1) and 11 of the RAJPASA Act and the Division Bench
judgments in the case of Mangi Kumari (supra) and Om Prakash @
Omi (D.B.Habeas Corpus Petition No.217/2022 decided on
01.12.2022), reveals that opportunity of hearing is required to be
given at each state- when the District Magistrate passes an order
of detention under Section 3 (1), to enable the detenue to file
representation before the State Government as per Section 9 (1)
of RAJPASA Act and after the State Government approves the
detention, then to the Advisory Board as mandated by Section 11
of the Act of 2006.
10. Letter No.F.20 (1)U;k;/2021/5038 dated 11.08.2023 placed at
page No.13 of the memo of petition is a forwarding letter to the
order of detention dated 11.08.2023 so also a notice to file
representation. Such composite notice, issued along with the
detention is illegal as has been held by this Court in the case of
Mangi Kumari (supra) and Om Prakash (supra) and hence, entire
proceedings are vitiated.
11. At this juncture, learned Additional Advocate General for the
State submitted that in case of Mangi Kumari (supra), the Division
Bench has quashed the detention order, however, without giving
the State a liberty to initiate proceedings afresh in accordance
with law.
[2024:RJ-JD:10908-DB] (5 of 5) [HC-404/2023]
12. In view of what we have discussed in preceding paragraphs
and following the reasoning given in Mangi Kumari (supra) and
Om Prakash (supra), the writ petition is allowed; the impugned
order dated 11.8.2023, order dated 22.08.2023 so also final order
dated 21.09.2023 issued by the State Government are hereby
quashed.
13. We would like to observe that in case, the State Government
deems it expedient and necessary to initiate proceedings under
the Act of 2006 afresh, it may do so, albeit after following the due
process and law including judicial precedents on the subject.
Needless to observe that the period of seven months' detention
which the detenue has already suffered shall be subsumed or
adjusted if any fresh proceedings are initiated by the District
Collector or State Government.
(YOGENDRA KUMAR PUROHIT),J (DINESH MEHTA),J
19-RP/-
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