Rajasthan High Court - Jodhpur
Smt. Suman vs State Of Rajasthan on 4 September, 2024
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
[2024:RJ-JD:35172-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Habeas Corpus Petition No. 87/2024
Smt. Suman W/o Pawan Solanki, Aged About 30 Years, R/o
Padala Bera, Mandore, Jodhpur
----Petitioner/Wife of Detenue
Versus
1. State Of Rajasthan through Secretary, Home Department,
Government Of Rajasthan, Secretariat, Jaipur
2. The District Magistrate, Jodhpur
3. Superintendent of Police, Jodhpur
4. Station House Officer, Police Station Mandore Jodhpur
----Respondents
D.B. Habeas Corpus Petition No. 211/2024
Jagdish S/o Niranaram, Aged About 53 Years, R/o Bilyubas
Bogera, Police Station Bhanipura, District Churu, presently
residing at Ward No. 2, RCP Colony, Surnada Road,
Loonkaransar, District Bikaner (Raj.).
----Petitioner/Father of Detenue
Versus
1. The State Of Rajasthan through Secretary Department
of Home Government of Rajasthan Secretariat Jaipur
(Raj.).
2. The District Magistrate, Bikaner (Raj.).
3. Superintendent of Police, District Bikaner (Raj.).
----Respondents
D.B. Habeas Corpus Petition No. 252/2024
Bhaga Ram Vishnoi S/o Harchand Ram Vishnoi, aged about
40 Years, R/o Bishnoiyon Ka Baas, Jur, Jodhpur (Raj.).
----Petitioner/Brother of Detenue
Versus
1. The State Of Rajasthan through Secretary, Department
Of Rajasthan, Secretariat, Jaipur (Raj.).
2. The District Magistrate, Jodhpur Rural (Raj.).
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3. Deputy Commissioner of Police, Jodhpur East (Raj.).
4. Station House Officer, Police Station- Karwad, District
Jodhpur East (Raj.).
----Respondents
For Petitioner(s) : Mr.Ravindra Acharya, Adv.
Mr.Aditya Sharma, Adv.
Mr.Gajendra Kumar Rinwa, Adv.
For Respondent(s) : Mr.Anil Joshi, GA-cum-AAG with
Mr.Pallav Sharma, Asstt. Counsel
Mr.Rajat Chhaparwal, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
HON'BLE MR. JUSTICE MUNNURI LAXMAN
Order
Reportable
Order Reserved on : 5.8.2024/12.8.2024/7.8.2024
Order Pronounced on : 04.09.2024
[Per Hon'ble Mr. Justice Munnuri Laxman] :
1. All these Habeas Corpus Petitions have been filed
challenging the detention and confirmation orders passed by the
District Magistrate and State Government under the Rajasthan
Prevention of Anti-Social Activities Act, 2006 (herein after referred
to as, "the Act"), whereby the corpuses were detained as
preventive measure for one year.
2. The facts in each of the petitions are as follows:-
(A) Habeas Corpus Petition No.87/2024:
(i) The Deputy Commissioner of Police, Jodhpur East has
submitted a report dated 20.10.2023 to the District Magistrate,
Jodhpur requesting him to initiate the proceedings for preventive
detention against the detenue-Pawan Solanki. The report
reflects that the detenue was involved in 17 FIRs registered at
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various Police Stations within the jurisdiction of Deputy
Commissioner of Police Jodhpur East for the offences punishable
under Sections 143, 147, 148, 149, 212, 279, 224, 307, 323, 327,
336, 341, 353, 364-A, 379, 384, 386, 387, 392, 395, 420, 427,
436, 454, 504, 506, 34, 120-B of IPC, under Section 3/25 of Arms
Act and Section 66(c) of the Information Technology Act, 2000.
The detenue was acquitted in FIR No.203/2006, P.S. Mandore and
FIR No.296/213, P.S. Mandore but out of them, in one case,
acquittal was based on the compromise. He was convicted in FIR
No.67/2010, P.S. Mandore. Whereas, in FIR No.223/2017, P.S.
Mandore, this Court quashed the FIR and in rest of the cases, the
trials are pending. The report also reflects initiation of five
proceedings under Sections 110, 122 and 151 of Cr.P.C against the
detenue.
(ii) On the basis of the above report, the District Magistrate
passed the detention order dated 20.10.2023 while exercising
power under sub-Section (2) of Section 3 of the Act.
Subsequently, the District Magistrate submitted a report as
required under Section 3(3) of the Act to the State Government
for approval. The State Government approved the detention order
of the District Magistrate vide order dated 30.10.2023. Later, the
detenue was detained on 22.11.2023. The grounds of detention as
required under Section 9 of the Act were immediately served to
the detenue on the same day informing his right to make a
representation to the State Government. The detenue has not
submitted any representation. The State Government made a
reference to the Advisory Board under Section 11 of the Act for
opinion of the Advisory Board constituted under Section 10 of the
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Act. The Advisory Board rendered the opinion dated 19.12.2023
opining that there were sufficient grounds to pass the detention
order by the District Magistrate. On the basis of such opinion, the
State Government passed the order dated 22.12.2023 confirming
the detention order. Aggrieved by the same the present Habeas
Corpus Petition has been filed.
(B) Habeas Corpus Petition No.211/2024:
(i) The Superintendent of Police, Bikaner made a report/
complaint dated 27.03.2024 requesting the District Magistrate,
Bikaner to commence the proceedings for preventive detention of
the detenue-Dana Ram Siyag. The report shows that the
detenue was involved in 13 criminal cases registered at various
Police Stations for the offences punishable under Sections 143,
147, 148, 149, 307, 323, 327, 336, 341, 342, 353, 354, 365, 379,
382, 384, 386, 387, 504, 34, of IPC, under Section 3/25, 3/25(1-
B)(A), 25, 25(1), 25(6), 25(1-B), 25(5), 25(8), 27 of Arms Act
and Section 3 PDPP Act. Out of the 13 cases, he was acquitted in
FIR No.16/2020, P.S. Loonkaransar and such acquittal was not on
merits but on compromise. In FIR No.178/2014, P.S. Loonkararsar,
he was convicted & sentenced with a fine amount. Further, 8 FIRs
are pending for trial. Three FIRs are said to be under
investigation. The proceedings under Section 110 of Cr.P.C. were
also initiated against the detenue on 31.03.2023 at Police Station
Loonkaransar.
(ii) Considering the report submitted by the Superintendent
of Police, the District Magistrate, Bikaner passed the order of
detention dated 03.04.2024. The detenue was detained on
03.04.2024. The grounds of detention order and his right to make
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representation were informed on 04.04.2024. The District
Magistrate submitted a report to the State Government for
approval as required under Section 3(3) of the Act. The
Government approved the detention order vide order dated
12.04.2024. The detenue did not furnish any representation under
Section 9 of the Act. The Government made a reference under
Section 11 of the Act to the Advisory Board while sending the
required proceedings. The Advisory Board by its opinion dated
14.05.2024 opined that there were justifiable grounds for
preventive detention of the detenue as was stated by the District
Magistrate. On the basis of the opinion of the Advisory Board, the
State Government confirmed the order of detention vide order
dated 27.05.2024. Aggrieved by the same, the present Habeas
Corpus Petition has been filed.
(C) Habeas Corpus Petition No.252/2024:
(i) The SHO of Police Station Karwar, Distt. Jodhpur East
submitted a report dated 10.01.2024 to the Commissioner of
Police, Jodhpur East informing the details of the cases registered
against detenue-Shyam Lal and requested the Commissioner to
take appropriate steps for detaining the detenue under the Act.
The Commissioner of Police, Jodhpur East responding to the
request of SHO submitted a report dated 10.01.2024 to the
District Magistrate for taking steps for initiating the proceedings
for detention of the detenue under the Act. The report of the SHO
and the Commissioner of Police show that the detenue was
involved in 32 cases for the offences punishable under Sections
143, 147, 148, 149, 302, 307, 307/34, 308, 323, 327, 332, 336,
341, 342, 353, 364, 365, 368, 379, 382, 384, 385, 387, 392, 394,
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427, 427/149, 447, 452, 458, 506, 120-B of IPC, under Section
3/25, 3/25(1-B)(A), 27, 35 of Arms Act, under Section 3 PDPP Act
and under Section 8/18, 8/22 of NDPS Act. The first case was of
the year 2008 when the detenue was juvenile. In this FIR bearing
No.175/2008, P.S. Mathania, the detenue was ordered to lodge in
Juvenile Home for a period of one month. In the second FIR of
2009, he was acquitted on the basis of compromise and in one
FIR, he was shown declared as absconder. He was acquitted in FIR
No.02/2011, P.S. Mathania and convicted in FIR No.62/2012, P.S.
Mathania. In FIR No.75/2014, P.S. Mathania, he was ordered to be
released on probation. The trials are pending in the remaining
cases except in FIR No.269/2023, P.S. Mathania, in which the
investigation is still pending. Apart from the above cases, the
proceedings under Sections 107, 110, 116(3), 151 of Cr.P.C. are
also pending against the detenue, including one proceeding under
Section 3 of Rajasthan Prevention of Anti-Social Activities Act,
2006. All those cases are relating to attempt to murder, riot,
extortion, assault, attacked on toll booth employees, damage to
public property, etc. The District Magistrate passed the order of
detention dated 18.04.2024. A report was submitted to the State
Government required under Section 3(2) of the Act. The State
Government vide order dated 30.04.2024 approved the detention
order. The detenue was detained on 14.05.2024. The grounds of
detention was furnished on the same day i.e. 14.05.2024.
Subsequently, a reference was made to the Advisory Board under
Section 9 of the Act. The Advisory Board furnished the opinion
dated 28.05.2024 justifying the existence of the grounds for
detention. Based on the opinion of the Advisory Board, the State
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Government passed the order dated 10.06.2024 confirming the
order of detention. That is how the present Habeas Corpus Petition
has been filed.
3. Apart from the several arguments raised by the learned
counsels for the petitioners in the present petitions, the foremost
argument raised is that no opportunity to make representation
before the approval of the detention order under Section 3 of the
Act was made available to the detenues and there was no
application of mind in passing the approval order under Section
3(3) of the Act by the State Government. The contention of the
learned counsels appearing for the petitioners in all these petitions
are that the order of detention passed under Section 3(2) of the
Act is valid for 12 days only unless approval is made by the State
Government within 12 days as required under Section 3(3) of the
Act; and the detention authority has to provide the earliest
opportunity to make representation as provided under section 9 of
the act before the approval is made by the State Government
under Section 3(3) of the Act and such opportunity was not
accorded. Thereby, there is a complete violation of the
requirement of the procedure under the Act.
4. In support of their contentions, the learned counsel for
the petitioners have relied upon two judgments of this Court
passed in D.B.Habeas Corpus Petition No.217/2022 (Om
Prakash @ Omi @ O.P. Vs. State of Rajasthan & Ors.),
decided on 01.12.2022 at Jaipur Bench, Jaipur and D.B.Habeas
Corpus Petition No.3/2023 (Mangi Kumari Vs. State of
Rajasthan & Ors.), decided on 25.05.2023 at Principal Seat,
Jodhpur.
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5. In some of the Habeas Corpus Petitions, additional
grounds were raised pertaining to absence of foundation to pass
detention order and there was no opinion by the Advisory Board
within the stipulated period. However, they were not seriously
raised while making the submissions at the stage of hearing the
present petitions.
6. The learned AAG appearing for the State vehemently
opposed the primary contention raised by the petitioners. The
learned AAG has submitted that requirement of giving earliest
opportunity as contemplated under Section 9 of the Act was
subsequent to the passing of the detention order and such a
representation is independent of approval under Section 3(3) of
the Act. According to him, the approval of the State Government
is internal process to have a check on the District Magistrate, who
has been authorized under Section 3(2) of the Act to exercise the
powers of the State Government to pass the detention order. Such
approval is nothing to do with the consideration of representation
contemplated under Section 9 of the Act, which is independent
and they are nothing to do with the approval of the detention
order passed under Section 3(3) of the Act.
7. The learned AAG also contended that two judgments
relied upon by the learned counsel for the petitioners have been
rendered without giving an opportunity/without there being any
argument touching the entitlement of the detenue to make a
representation and consideration of such representation by the
State Government under Section 3(3) of the Act. It is also
submitted that the Hon'ble Court in the above two decisions have
not properly considered the purport of the language under Section
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3 and Section 9 of the Act. Such judgments have no precedential
value as they were result of rules of sub-silentio and per incurium
and distinguishable. Therefore, he requested to ignore those such
judgments. The learned AAG also submitted that on seeing the
number of criminal cases and the nature of criminal cases, the
District Magistrate had a good foundation to come to conclusion
that the activities of the detenues are prejudicial to the interest of
general society and against the public order and it is not merely
law and order. Therefore, in this regard the contention though not
seriously contested, has no merit.
8. The learned AAG also contended that time stipulated for
furnishing the opinion of the Advisory Board commences from the
date of detention and in all opinions rendered by the Advisory
Board were within the time stipulated under Section 12 of the Act
and such contentions of the learned counsels for the petitioners
are contrary to the facts on record. Therefore, those contentions
required to be ignored.
9. We have heard the learned counsel for the petitioners
as well as learned AAG appearing for the State and carefully
perused the material available on record.
10. In the background of the primary contentions advanced
by learned counsel for both the parties, it is apt to refer to some
of the provisions of the Act, which are as follows:-
"2(a) "authorized officer" means a District Magistrate
authorized under sub-section (2) of section 3 to exercise
the powers conferred under sub-section (1) of that
section;"
"2(c) "dangerous Person" means a person, who either
by himself or as member or leader of a gang, habitually
commits, or 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 (Central Act
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No. 45 of 1860) or any of the offences punishable under
Chapter V of the Arms Act, 1959 (Central Act No. 54 of
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 (Central
Act No. 53 of 1972) or any offence punishable under
section 67 of the Information Technology Act, 2000
(Central Act No. 21 of 2000);"
"2(g) "habitual", with all its grammatical variations,
includes acts or omissions committed repeatedly,
persistently and frequently having a thread of continuity
stringing together similar repetitive acts or omission but
shall not include isolated, individual and dissimilar acts or
omissions;"
"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 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."
"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.
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(2) Nothing in sub-section (1) shall require the authority
to disclose facts which it considers to be against the
public interest to disclose."
"13. Action upon report of Advisory Board.- (1) In
any case where the Advisory Board has reported that
there is, in its opinion, sufficient cause for the detention
of the detenu, the State Government may confirm the
detention order and continue the detention of the
detenue for a period not exceeding the maximum period
prescribed by section 14 as it thinks fit.
(2) In any case where the Advisory Board has reported
that there is, in its opinion, no sufficient cause for the
detention of the person concerned, the State
Government shall revoke the detention order and cause
the detenue to be released forthwith."
"15. Revocation of detention orders.- (1) Without
prejudice to the provisions of section 23 of the Rajasthan
General Clauses Act, 1955 (Act No. 8 of 1955) a
detention order may, at any time for reasons to be
recorded in writing, be revoked or modified by the State
Government, notwithstanding that the order has been
made by an authorized officer.
(2) The expiry or revocation of a detention order
(hereinafter in this sub-section referred to as the earlier
detention order") shall not bar the making of another
detention order (hereinafter in this sub-section referred
to as "the subsequent detention order") under section 3
against the same person.
Provided that in a case where no fresh facts have
arisen after the expiry or revocation of the earlier
detention order made against such person, the maximum
period for which such person may be detained in
pursuance of the subsequent detention order shall in no
case, extend beyond the expiry of a period of twelve
months from the date of detention under the earlier
detention order."
11. A glance at Section 3(1) of the Act, it is clear that in fact,
the State Government is empowered to pass preventive detention
orders when circumstances exist that disturb the maintenance of
public order. Sub-Section (2) of Section 3 of the Act enables the
State Government to delegate such powers to District Magistrate
depending upon the circumstances prevailing or likely to prevail in
any area within the local limits of the jurisdictional District
Magistrate. The State Government may, by an order in writing,
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direct the District Magistrate to exercise the powers of the State
Government under Sub-Section (1) of Section 3 of the Act.
Sub-Section (3) of Section 3 of the Act is a kind of supervision and
control reserved by the delegator on exercise of powers by
delegatee. Sub-Section (3) requires, in case, a District Magistrate
passes the orders under Section 3(2) of the Act, such order is
valid for only 12 days unless it is approved in the meantime, by
the State Government.
12 Section 9 requires the authority making the order of
detention 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 detention order has been passed and shall
offer him the earliest opportunity of making representation against
the order of the State Government. Sub-Section (2) of Section 9
of the Act creates no obligation to disclose facts which the
detention authority considers to be against the public interest. It is
important to note that the key words used in Section 3(2) and (3)
refers to "authorized Officer" which means as per Section 2(a),
District Magistrate: whereas Section 9 refers to "authority making
the detention order" which can be State Government or District
Magistrate. Section 3(2) and 3(3) of the Act relates to the concept
of delegation. Section 3(2) of the Act enables the State
Government to delegate its power, which is primarily vested with it
under Section 3(1) of the Act. Sub-section (3) is an internal check
and control retained by delegator over the exercise of power by
the delegatee.
13. It is apt to refer to the intricacy involved in the concept
of delegation. Delegation generally means parting of powers by
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the person who grants the delegation, but it also means conferring
of an authority to do things which otherwise that person would
have to do himself. Justice Mathew in Gwalior Rayon Silk
Manufacturing (Wvg.) Col. Ltd. v. The Assistant
Commissioner of Sales Tax & Ors., reported in 1974 SCR (2)
879, has succinctly discussed the concept of delegation.
Paragraph 37 reads as follows:-
"37. ...... Delegation is not the complete handing over or
transference of a power from one person or body of
persons to another. Delegation may be defined as the
entrusting, by a person or body of persons, of the
exercise of a power residing in that person or body of
persons, to another person or body of persons, with
complete power of revocation or amendment remaining
in the grantor or delegator. It is important to grasp the
implications of this, for, much confusion of thought had
unfortunately resulted from assuming that delegation
involves or may involve, the complete abdication or
abrogation of a power. This is precluded by the
definition. Delegation often involves the granting of
discretionary authority to another, but such authority is
purely derivative. The ultimate power always remains in
the delegator and is never renounced."
14. A reading of the above judgment shows that there is a
misconception in assuming that delegation involves or may
involve, the complete abdication or abrogation of a power of
delegate. This assumption has been precluded from the definition
of delegation. The ultimate power always remains with the
delegator and is never renounced. The object of ultimate power
with the delegator is check on proper exercise of powers by the
delegatee. At this stage, the entire exercise is in between the
delegator and delegate. The detenue has no role in the process of
scrutiny of the order passed by the delegatee.
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15. The right to make a representation under Section 9 of
the Act would arise only after the detention has been made in
pursuance of detention order which is passed either under section
3(1) or 3(2) of the Act. The finality to the detention order of the
District Magistrate beyond 12 days would arise under Section 3 of
the Act, if the detention order passed by the District Magistrate is
approved by the State Government with such time. The approval
of detention order of District Magistrate is ultimate power
remained with delegator to put checks and balances on the order
of detention since it involves deprivation of personal liberty of a
citizen. Such kind of checks, on the powers of District Magistrate
(delegate), who exercises the powers of delegation and acts in
consequence of the delegation of powers by the State Government
under Section 3(1) of the Act, is supervisory in nature.
16 The contention of the learned counsels appearing for the
petitioners that earliest opportunity contemplated under Section 9
of the Act to make a representation must be before the approval
has been made by the State Government under Section 3(3) of
the Act, is not appealable. The reason is that the operation of
Section 9 would come in effect only after the detention order is
passed and detention is made. These orders of detention may be
either by the State Government or by the District Magistrate.
When the detention order is passed by State Government, and the
detention of detenue is made, the operation of section 9 becomes
redundant if such contention is accepted. If the detention order is
passed by District Magistrate, the detention of detenue can be
made within 12 days of such order or after approval of such order
by State Government within 12 days of such order. If the
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contention of the learned counsels appearing for the petitioners is
accepted, it makes the exercise of powers by the District
Magistrate nugatory in the event if the detenue is not detained
within 12 days. Irrespective of whether the detenue was detained
or not, the State Government is entitled to consider the report of
the District Magistrate under sub-Section (3) and pass an order
appropriately either approving or disapproving such order. The
detenue has no role at this stage. It is the satisfaction of the
delegator, that is is essential in the exercise of ultimate powering
which is vested with the delegator, which the Government reserve
in the concept of delegation.
17. The Apex Court Court had an occasion to consider the
stages of consideration of representation in pursuance of
furnishing the grounds of detention and other material upon
detention based on the detention order in the case of Pramod
Singla Vs. Union of India & Ors., reported in 2023 SCC
Online SC 374. The relevant paragraphs of the judgment are as
follows:-
"29. In the Pankaj Kumar case (supra), the petitioners
therein filed a writ petition in the Supreme Court seeking for
a quashing of a detention order passed against them under
the Preventive Detention Act, 1950, on grounds that the
Government failed to consider the representation made by
them and merely passed it on to the Advisory Board. After
careful consideration, a Constitution Bench of this Court
held that the Government must act Independently from the
Advisory Board, and that there exists no mandate on the
Government to wait for the decision of the Advisory Board.
The relevant paragraphs of the said judgment are being
extracted herein:
"It is true that clause (5) does not in positive language
provide as to whom the representation is to be made and by
whom, when made, it is to be considered. But the
expressions "as soon as may be" and "the earliest
opportunity" in that clause clearly indicate that the grounds
are to be served and the opportunity to make a
representation are provided for to enable the detenu to
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show that his detention is unwarranted and since no other
authority who should consider such representation is
mentioned it can only be the detaining authority to whom it
is to be made which has to consider it. Though clause (5)
does not in express terms say so it follows from its
provisions that it is the detaining authority which has to give
to the detenu the earliest opportunity to make a
representation and to consider it when so made whether its
order is wrongful or contrary to the law enabling it to detain
him. The illustrations given in Abdul Karim case [Abdul
Karim v. State of W.B., (1969) 1 SCC 433] show that clause
(5) of Article 22 not only contains the obligation of the
appropriate Government to furnish the grounds and to give
the earliest opportunity to make a representation but also by
necessary implication the obligation to consider that
representation. Such an obligation is evidently provided for
to give an opportunity to the detenu to show and a
corresponding opportunity to the appropriate Government to
consider any objections against the order which the detenu
may raise so that no person is, through error or otherwise,
wrongly arrested and detained. If it was intended that such
a representation need not be considered by the Government
where an Advisory Board is constituted and that
representation in such cases is to be considered by the
Board and not by the appropriate Government, clause (5)
would not have directed the detaining authority to afford the
earliest opportunity to the detenu. In that case the words
would more appropriately have been that the authority
should obtain the opinion of the Board after giving an
opportunity to the detenu to make a representation and
communicate the same to the Board. But what would
happen in cases where the detention is for less than 3
months and there is no necessity of having the opinion of
the Board? If counsel's contention were to be right the
representation in such cases would not have to be
considered either by the appropriate Government or by the
Board and the right of representation and the corresponding
obligation of the appropriate Government to give the earliest
opportunity to make such representation would be rendered
nugatory. In imposing the obligation to afford the
opportunity to make a representation, clause (5) does not
make any distinction between orders of detention for only 3
months or less and those for a longer duration. The
obligation applies to both kinds of orders. The clause does
not say that the representation is to be considered by the
appropriate Government in the former class of cases and by
the Board in the latter class of cases. In our view it is clear
from clauses (4) and (5) of Article 22 that there is a dual
obligation on the appropriate Government and a dual right in
favour of the detenu, namely, (1) to have his representation
irrespective of the length of detention considered by the
appropriate Government and (2) to have once again that
representation in the light of the circumstances of the case
considered by the Board before it gives its opinion. If in the
light of that representation the Board finds that there is no
[2024:RJ-JD:35172-DB] (17 of 38) [HC-87/2024]
sufficient cause for detention the Government has to revoke
the order of detention and set at liberty the detenu. Thus,
whereas the Government considers the representation to
ascertain whether the order is in conformity with its power
under the relevant law, the Board considers such
representation from the point of view of arriving at its
opinion whether there is sufficient cause for detention. The
obligation of the appropriate Government to afford to the
detenu the opportunity to make a representation and to
consider that representation is distinct from the
Government's obligation to constitute a Board and to
communicate the representation amongst other materials to
the Board to enable it to form its opinion and to obtain such
opinion.
This conclusion is strengthened by the other
provisions of the Act. In conformity with clauses (4) and (5)
of Article 22, Section 7 of the Act enjoins upon the detaining
authority to furnish to the detenu grounds of detention
within five days from the date of his detention and to afford
to the detenu the earliest opportunity to make his
representation to the appropriate Government. Sections 8
and 9 enjoin upon the appropriate Government to constitute
an Advisory Board and to place within 30 days from the date
of the detention the grounds for detention, the detenu's
representation and also the report of the officer where the
order of detention is made by an officer and not by the
Government. The obligation under Section 7 is quite distinct
from that under Sections 8 and 9. If the representation was
for the consideration not by the Government but by the
Board only as contended, there was no necessity to provide
that it should be addressed to the Government and not
directly to the Board. The Government could not have been
intended to be only a transmitting authority nor could it
have been contemplated that it should sit tight on that
representation and remit it to the Board after it is
constituted. The peremptory language in clause (5) of Article
22 and Section 7 of the Act would not have been necessary
if the Board and not the Government had to consider the
representation. Section 13 also furnishes an answer to the
argument of the counsel for the State. Under that section
the State Government and the Central Government are
empowered to revoke or modify an order of detention. That
power is evidently provided for to enable the Government to
take appropriate action where on a representation made to
it, it finds that the order in question should be modified or
even revoked. Obviously, the intention of Parliament could
not have been that the appropriate Government should pass
an order under Section 13 without considering the
representation which has under Section 7 been addressed to
it.
For the reasons aforesaid we are in agreement with
the decision in Abdul Karim case [Abdul Karim v. State of
W.B., (1969) 1 SCC 433]. Consequently, the petitioners had
[2024:RJ-JD:35172-DB] (18 of 38) [HC-87/2024]
a Constitutional right and there was on the State
Government a corresponding Constitutional obligation to
consider their representations irrespective of whether they
were made before or after their cases were referred to the
Advisory Board and that not having been done the order of
detention against them cannot be sustained. In this view it
is not necessary for us to examine the other objections
raised against these orders. The petition is therefore
allowed, the orders of detention against Petitioners 15 and
36 are set aside and we direct that they should be set at
liberty forthwith."
30. Further, in the Jayanarayan Sukul Case (Supra), the
same issue was considered by another Constitution Bench of
this Court, wherein it went on to reiterate the principles in
the Pankaj Kumar Case (Supra), and held that the central
Government must act independently of the Advisory Board,
and can decide the representation made by the detenue
without hearing from the Advisory Board. For the purpose of
convenience, the relevant paragraph of the said judgment is
being reproduced herein:
"In the present case, the State of West Bengal is guilty of
infraction of the Constitutional provisions not only by
inordinate delay of the consideration of the representation
but also by putting of the consideration till after the receipt
of the opinion of the Advisory Board. As we have already
observed there is no explanation for this inordinate delay.
The Superintendent who made the enquiry did not affirm an
affidavit. The State has given no information as to why this
long delay occurred. The inescapable conclusion in the
present case is that the appropriate authority failed to
discharge its Constitutional obligation by inactivity and lack
of independent judgment."
31. In the Harardhan Saha Case (Supra), yet another
Constitution Bench of this Court considered the distinction
between the consideration of the representation made by
the detenue in cases of preventive detention, and it was
stated that if the representation was made before the
matter is referred to the Advisory Board, the detaining
authority must consider such representation, but if the
representation is made after the matter is referred to the
Advisory Board, the detaining authority would first consider
it and then send it to the Advisory Board. The relevant
paragraph from the said judgment is being reproduced
hereunder:
"The representation of a detenu is to be considered. There is
an obligation on the State to consider the representation.
The Advisory Board has adequate power to examine the
entire material. The Board can also call for more materials.
The Board may call the detenu at his request. The
Constitution of the Board shows that it is to consist of
Judges or persons qualified to be Judges of the High Court.
The Constitution of the Board observes the fundamental of
fair play and principles of natural justice. It is not the
[2024:RJ-JD:35172-DB] (19 of 38) [HC-87/2024]
requirement of principles of natural justice that there must
be an oral hearing. Section 8 of the Act which casts an
obligation on the State to consider the representation
affords the detenu all the rights which are guaranteed by
Article 22(5). The Government considers the representation
to ascertain essentially whether the order is in conformity
with the power under the law. The Board, on the other hand,
considers whether in the light of the representation there is
sufficient cause for detention.
Principles of natural justice are an element in
considering the reasonableness of a restriction where Article
19 is applicable. At the stage of consideration of
representation by the State Government, the obligation of
the State Government is such as Article 22(5) implies.
Section 8 of the Act is in complete conformity with Article
22(5) because this section follows the provisions of the
Constitution. If the representation of the detenu is received
before the matter is referred to the Advisory Board, the
detaining authority considers the representation. If a
representation is made after the matter has been referred to
the Advisory Board, the detaining authority will consider it
before it will send representation to the Advisory Board."
32. Subsequently, in the case of Francis Coralie Mullin v.
W.C. Khambra, a Division Bench of this Court considered
the principles laid down in the judgment of Jayanarayan
Sukul (supra), and while it agreed with the principles of the
above mentioned case, it however made an observation
stating that when it was said that the Government must
decide on the representation before forwarding it to the
advisory board, the emphasis was not on time, but on the
onus of the Government to decide the representation
Independently. This essentially meant that the Government
must act independently of the Advisory Board, the relevant
paragraphs from the said judgment are being extracted
herein:
"We have no doubt in our minds about the role of the Court
in cases of preventive detention : it has to be one of eternal
vigilance. No freedom is higher than personal freedom and
no duty higher than to maintain it unimpaired. The Court's
writ is the ultimate insurance against illegal detention. The
Constitution enjoins conformance with the provisions of
Article 22 and the Court exacts compliance. Article 22(5)
vests in the detenu the right to be provided with an
opportunity to make a representation. Here the Law Reports
tell a story and teach a lesson. It is that the principal enemy
of the detenu and his right to make a representation is
neither high-handedness nor mean-mindedness but the
[2024:RJ-JD:35172-DB] (20 of 38) [HC-87/2024]
casual indifference, the mindless insensibility, the routine
and the red tape of the bureaucratic machine. The four
principles enunciated by the Court in Jayanarayan Sukul v.
State of W.B. [Jayanarayan Sukul v. State of W.B., (1970) 1
SCC 219 : 1970 SCC (Cri) 92] as well as other principles
enunciated in other cases, an analysis will show, are aimed
at shielding personal freedom against indifference,
insensibility, routine and red tape and thus to secure to the
detenu the right to make an effective representation. We
agree : (1) the detaining authority must provide the detenu
a very early opportunity to make a representation, (2) the
detaining authority must consider the representation as soon
as possible, and this, preferably, must be before the
representation is forwarded to the Advisory Board, (3) the
representation must be forwarded to the Advisory Board
before the Board makes its report, and (4) the consideration
by the detaining authority of the representation must be
entirely independent of the hearing by the Board or its
report, expedition being essential at every stage. We,
however, hasten to add that the time- imperative can never
be absolute or obsessive. The Court's observations are not
to be so understood. There has to be lee-way, depending on
the necessities (we refrain from using the word
"circumstances") of the case. One may well imagine a case
where a detenu does not make a representation before the
Board makes its report making it impossible for the
detaining authority either to consider it or to forward it to
the Board in time or a case where a detenu makes a
representation to the detaining authority so shortly before
the Advisory Board takes up the reference that the detaining
authority cannot consider the representation before then but
may merely forward it to the Board without himself
considering it. Several such situations may arise compelling
departure from the time-imperative. But no allowance can
be made for lethargic indifference. No allowance can be
made for needless procrastination. But, allowance must
surely be made for necessary consultation where legal
intricacies and factual ramifications are involved. The burden
of explaining the necessity for the slightest departure from
the time-imperative is on the detaining authority.
We have already expressed our agreement with the
four principles enunciated in Jayanarayan Sukul v. State of
W.B. [Jayanarayan Sukul v. State of W.B., (1970) 1 SCC
219 : 1970 SCC (Cri) 92] We would make one observation.
When it was said there that the Government should come to
its decision on the representation before the Government
forwarded the representation to the Advisory Board, the
emphasis was not on the point of time but on the
requirement that the Government should consider the
representation independently of the Board."
33. However, in the case of Abdulla Kunhi (supra), where
the preventive detention of the petitioner therein under the
COFEPOSA Act was challenged on the same disputed
[2024:RJ-JD:35172-DB] (21 of 38) [HC-87/2024]
ground, a Constitutional Bench of this Court, while
considering both the issues of when the representation is
submitted before the matter is referred to the Advisory
Board and after the mater has been referred to the advisory
board, for both the circumstances, had held that the
Government must wait for the decision of the Advisory
Board before making its decision on the representation. The
relevant paragraph of the abovementioned judgment is
being extracted hereunder:
"We agree with the observations in Frances Coralie Mullin
case [(1980) 2 SCC 275 : 1980 SCC (Cri) 419]. The time
imperative for consideration of representation can never be
absolute or obsessive. It depends upon the necessities and
the time at which the representation is made. The
representation may be received before the case is referred
to the Advisory Board, but there may not be time to dispose
of the representation before referring the case to the
Advisory Board. In that situation the representation must
also be forwarded to the Advisory Board along with the case
of the detenu. The representation may be received after the
case of the detenu is referred to the Board. Even in this
situation the representation should be forwarded to the
Advisory Board provided the Board has not concluded the
proceedings. In both the situations there is no question of
consideration of the representation before the receipt of
report of the Advisory Board. Nor it could be said that the
Government has delayed consideration of the
representation, unnecessarily awaiting the report of the
Board. It is proper for the Government in such situations to
await the report of the Board. If the Board finds no material
for detention on the merits and reports accordingly, the
Government is bound to revoke the order of detention.
Secondly, even if the Board expresses the view that there is
sufficient cause for detention, the Government after
considering the representation could revoke the detention.
The Board has to submit its report within eleven weeks from
the date of detention. The Advisory Board may hear the
detenu at his request. The Constitution of the Board shows
that it consists of eminent persons who are Judges or
persons qualified to be Judges of the High Court. It is
therefore, proper that the Government considers the
representation in the aforesaid two situations only after the
receipt of the report of the Board. If the representation is
received by the Government after the Advisory Board has
made its report, there could then of course be no question of
sending the representation to the Advisory Board. It will
have to be dealt with and disposed of by the Government as
early as possible."
18. A reading of the above judgment makes it clear that the
obligation to consider representation is independent and it is
nothing to do with the reference to Advisory Board or passing of
[2024:RJ-JD:35172-DB] (22 of 38) [HC-87/2024]
confirmation order. The requirement of law is that earliest
opportunity to make representation is to be accorded and such a
representation shall be considered as early as possible. The words
"earliest opportunity making authority" used in Section 9 of the
Act would mean facilitating and furnishing all the material which
are the foundation for passing the detention order to enable the
detenue to make a representation as early as possible. The time
prescribed under Section 9 of the Act itself is one of safeguard to
achieve the requirement of affording earliest opportunity of
making representation against the detention order. Section 9 of
the Act itself contemplates three days' time within which the
detention authority shall communicate all the grounds, on which
the order has been made and shall also furnish all the material
required to facilitate him to exercise his right to make earliest
representation to the State Government against the order of
detention. Section 9 of the Act itself creates the speedy procedure
to furnish the grounds of detention and other material, which are
the foundation immediately after detention is made so as to
enable the detenue to make earliest representation. The
contention that words "earliest representation" as contemplated
under Section 9(1) of the Act cannot be stretched to the extent
that such an opportunity has to be made before the approval
under Section 3(3) of the Act. In the event, the detenue is not
detained in pursuance of detention order of District Magistrate,
such order passed by the District Magistrate under Section 3(3) of
the Act could not subsist after 12 days. The right to make
representation would only arise when actual detention is affected
in pursuance of detention order. The representation contemplated
[2024:RJ-JD:35172-DB] (23 of 38) [HC-87/2024]
under section 9 of the act is nothing to do with approval of
detention order of District Magistrate by State Government under
section 3(3) of the Act.
19. In the present cases except one case, the detention of
the detenue was made consequent to the approval of detention
order by the State Government. In one case, detention has been
made immediately after the order of detention passed by the
District Magistrate and approval was also obtained from the State
Government and grounds of order of detention has also been
furnished to enable the detenue to make representation. The
representation which is contemplated under Section 9 of the Act is
independent of approval of detention order of District Magistrate
by State Government. The State Government is bound to act on
such representation, if any made, as early as possible as has been
held by apex court in case of Pramod Singla (cited supra) .
20. In the case of Om Prakash @ Omi @ O.P. (cited supra)
relied upon by the learned counsels for the petitioners, the
following contentions were raised before the Court:
"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, 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
[2024:RJ-JD:35172-DB] (24 of 38) [HC-87/2024]
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 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 Police
before the District Magistrate, proceedings under Section 3
[2024:RJ-JD:35172-DB] (25 of 38) [HC-87/2024]
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."
21 Dealing with the said contentions, the Division Bench of
this Court held as follows:-
"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."
22. In the case of Mangi Kumari (cited supra) which in turn
placed reliance on the decision of Om Prakash@ Omi (cited
supra) relied upon by the learned counsels for the petitioners, the
arguments raised before the Court are as follows:-
"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
[2024:RJ-JD:35172-DB] (26 of 38) [HC-87/2024]
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.
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 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.
[2024:RJ-JD:35172-DB] (27 of 38) [HC-87/2024]
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 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
[2024:RJ-JD:35172-DB] (28 of 38) [HC-87/2024]
is clearly reflected on the said 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 filing/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."
23 Dealing with the said contentions, the following findings
have been arrived at:-
"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 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
[2024:RJ-JD:35172-DB] (29 of 38) [HC-87/2024]
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."
24. A reading of the above contentions and the findings of
the Division Benches of this Court, there is no argument either
from the petitioners' side or from the respondents therein to the
effect that the representation contemplated under Section 9 has to
be part of decision making process under Section 3(3) of the Act.
If this finding is to be approved, it makes mandatory for the
detention authority i.e. District Magistrate to arrest the detenue
immediately within 12 days and get an approval by affording him
right to make representation and consideration of such a
representation under Section 3(3) of the Act. The Act has nowhere
stated that detenue has to be detained in pursuance of the
detention order immediately within 12 days. What is requirement
under Section 9 of the Act is that a detention shall be in pursuance
of the detention order passed either by the State Government or
by the Authorized Officer. If such contention is accepted, the
detenue would not have any right to make representation and to
[2024:RJ-JD:35172-DB] (30 of 38) [HC-87/2024]
consider such representation if the State Government passes
detention order under Section 3(1) of Act. As Section 3(3) of the
Act would apply only if detention is made by the District
Magistrate. The Division Benches while giving its findings that
representation contemplated under Section 9(1) of the Act has to
be considered in the process of approval of detention order of the
District Magistrate by State Government under Section 3(3) of the
Act, has not properly noticed the words "authority making order of
detention" used in section 9(1) of Act. Such authority can be State
Government or the Authorized Officer. The words "authorized
Officer" and the "authority making order of detention" have
distinctive connotations. The right to make representation, and
consideration of such representation is independent of approval
contemplated under Section 3(3) of the Act. The approval
contemplated under Section 3(3) is a kind of ultimate power
retained by the State Government being the delegator of the
power to District Magistrate under Section 3(2) of the Act. Such
an approval is in exercise of such ultimate power to control the
actions of delegatee. At that stage of approval under Section 3(3)
of the Act, the detenue has no role. With all respect to the learned
Judges who passed the order in Om Prakash @ Omi's case and
to the learned Judges who have agreed with such findings in
Mangi Kumari case, we cannot concede that this Court is bound
to follow such decisions. We are conscious of rule of stare decisis/
precedent. We are also conscious that rules of precedence and
principles laid down by Apex Court in the case of Mahadeolal
Kanodia v. Administrator General of West Bengal (AIR 1960 SC
936) which require that "Judicial decorum no less than legal
[2024:RJ-JD:35172-DB] (31 of 38) [HC-87/2024]
propriety forms the basis of judicial procedure. If one thing is
more necessary in law than any other thing, it is the quality of
certainty. That quality would totally disappear if judges of co-
ordinate jurisdiction in a High Court start overruling one another's
decisions. If one Division Bench of a High Court is unable to
distinguish a previous decision of another Division Bench, and
holding the view that the earlier decision is wrong, itself gives
effect to that view the result would be utter confusion That
position would be equally bad where a Judge sitting singly in the
High Court is of opinion that the previous decision of another
single Judge on a question of law is wrong and gives effect to that
view instead of referring the matter to a larger Bench. In such a
case lawyers would not know how to advise their clients and all
courts subordinate to the High Court would find themselves in an
embarrassing position of having to choose between dissentient
judgments of their own High Court, as far as we are aware it is the
uniform practice in all the High Courts in India that if one Division
Bench differs from an earlier view on a question of law of another
Division Bench, a reference is made to a larger Bench."
25. The rule of State Decisis/ Precedence has its own
exceptions. The exceptions as stated by Salmond's Jurisprudence,
11th Edn. at pages 199 to 217 are as follows:
"(1) A decision ceases to be binding if a statute or
statutory rule inconsistent with it is subsequently
enacted, or if it is reserved or overruled by a higher
Court.
(2) A precedent is not binding if it was rendered in
ignorance of a statute or a rule having the force of
statute.
(3) A precedent loses its binding force if the court that
decided it overlooked an inconsistent decision of a higher
Court.
[2024:RJ-JD:35172-DB] (32 of 38) [HC-87/2024]
(4) A Court is not hound by its own previous decisions
that are in conflict with one another. If the new decision is
in conflict with the old, it is given per incuriam and is not
binding on a later Court.
Although the later Court is not bound by the decision so
given per incuriam, this does not mean that if is bound by
the first case. Perhaps in strict logic the first case should
be binding, since it should never have been departed
from, and was only departed from per incuriam. However,
this is not the rule. The rule if that where there are
previous inconsistent decisions of its own the Court is free
to follow either. It can follow the earlier, but equally, if it
thinks fit, it can follow the later.
(5) Precedents sub silentio, are not regarded as
authoritative. A decision passes sub silentio when the
particular point of law involved in the decision is not
perceived by the Court or present to its mind.
(6) Decisions of equally divided Courts we not considered
binding."
26. The Apex Court in case of Arnit Das vs. State of Bihar
(MANU/SC/0376/2000) has explained Rule of Sub-silentio and
held as follows:
"20. A decision not expressed, not accompanied by
reasons and not proceeding on conscious consideration of
an issue cannot be deemed to be a law declared to have a
binding effect as is contemplated by Article 141. That
which has escaped in the judgment is not ratio decidendi.
This is the rule of sub-silentio, in the technical sense
when a particular point of law was not consciously
determined."
27. The Apex Court in case of The Secretary to Govt. of
Kerala, Irrigation Department and Ors. vs. James Varghese
and Ors. ( MANU/SC/0575/2022) has considered and expounded
rule of per incurium and rule of Sub-silentio which reads
hereunder:
109. A seven-Judge Bench of this Court in the case of
Bengal Immunity Co. Limited v. State of Bihar and
Ors. MANU/SC/0083/1955 : [1955] 2 SCR 603, was
considering the question as to whether the majority decision
in the case of State of Bombay and Anr. v. United
Motors (India) Limited and Ors. MANU/SC/0095/1953 :
[1953] SCR 1069 laid down a correct law. The authority of
the court to go beyond the majority decision was
questioned. While considering the said objection, before
[2024:RJ-JD:35172-DB] (33 of 38) [HC-87/2024]
going into the merits of the matter, S.R. Das, Acting C.J.,
observed thus:
........Learned Counsel for some of the interveners
question our authority to go behind the majority
decision. It is, therefore, necessary at this stage to
determine this preliminary question before entering
upon a detailed discussion on the question of
construction of Article 286.
In England, the Court of Appeal has imposed upon its
power of review of earlier precedents a limitation,
subject to certain exceptions. The limitation thus
accepted is that it is bound to follow its own decisions
and those of courts of Coordinate jurisdiction, and the
"full" court is in the same position in this respect as a
division Court consisting of three members. The only
exceptions to this Rule are: (1) the court is entitled
and bound to decide which of the two conflicting
decisions of its own it will follow; (2) the Court is
bound to refuse to follow a decision of its own which,
though not expressly overruled, cannot, in its opinion
stand with a decision of the House of Lords; and (3)
the court is not bound to follow a decision of its own,
if it is satisfied that the decision was given per
incuriam e.g. where a statute or a Rule having
statutory effect which would have affected the
decision was not brought to the attention of the
earlier court. [See Young v. Bristol Aeroplane Co. Ltd.
[LR 1944 KB 718 CA] which, on appeal to the House
of Lords, was approved by Viscount Simon in LR 1946
AC 163 at p. 169]. A decision of the House of Lords
upon a question of law is conclusive and binds the
House in subsequent case. An erroneous decision of
the House of Lords can be set right only by an Act of
Parliament. [See Street Tramways v. London County
Council [1898 AC 375] This limitation was repeated by
Lord Wright in Radcliffe v. Ribble Motor Services Ltd.
[1939 AC 215 at p. 245]
110. In the case of State of U.P. and Anr. v. Synthetics
and Chemicals Ltd. and Anr. MANU/SC/0616/1991 :
(1991) 4 SCC 139, this Court observed thus:
"40. 'Incuria' literally means 'carelessness'. In practice
per incuriam appears to mean per ignoratium. English
courts have developed this principle in relaxation of
the Rule of stare decisis. The 'quotable in law' is
avoided and ignored if it is rendered, 'in ignoratium of
a statute or other binding authority'. (Young v. Bristol
Aeroplane Co. Ltd. [(1944) 1 KB 718 : (1944) 2 All ER
293]). Same has been accepted, approved and
adopted by this Court while interpreting Article 141 of
the Constitution which embodies the doctrine of
precedents as a matter of law. In Jaisri Sahu v.
Rajdewan Dubey MANU/SC/0371/1961 : [(1962) 2
SCR 558 : AIR 1962 SC 83] this Court while pointing
out the procedure to be followed when conflicting
[2024:RJ-JD:35172-DB] (34 of 38) [HC-87/2024]
decisions are placed before a bench extracted a
passage from Halsbury's Laws of England
incorporating one of the exceptions when the decision
of an appellate court is not binding.
41. Does this principle extend and apply to a
conclusion of law, which was neither raised nor
preceded by any consideration. In other words can
such conclusions be considered as declaration of law?
Here again the English courts and jurists have carved
out an exception to the Rule of precedents. It has
been explained as Rule of sub-silentio. "A decision
passes sub-silentio, in the technical sense that has
come to be attached to that phrase, when the
particular point of law involved in the decision is not
perceived by the court or present to its mind."
(Salmond on Jurisprudence 12th Edn., p. 153). In
Lancaster Motor Co. (London) Ltd. v. Bremith
Ltd. [(1941) 1 KB 675, 677 : (1941) 2 All ER 11] the
Court did not feel bound by earlier decision as it was
rendered 'without any argument, without reference to
the crucial words of the Rule and without any citation
of the authority'. It was approved by this Court in
Municipal Corporation of Delhi v. Gurnam Kaur.
[MANU/SC/0323/1988 : (1989) 1 SCC 101] The
bench held that, 'precedents sub-silentio and without
argument are of no moment'. The courts thus have
taken recourse to this principle for relieving from
injustice perpetrated by unjust precedents. A decision
which is not express and is not founded on reasons
nor it proceeds on consideration of issue cannot be
deemed to be a law declared to have a binding effect
as is contemplated by Article 141. Uniformity and
consistency are core of judicial discipline. But that
which escapes in the judgment without any occasion
is not ratio decidendi. In B. Shama Rao v. Union
Territory of Pondicherry [MANU/SC/0299/1967 :
AIR 1967 SC 1480 : (1967) 2 SCR 650 : 20 STC 215]
it was observed, 'it is trite to say that a decision is
binding not because of its conclusions but in regard to
its ratio and the principles, laid down therein'. Any
declaration or conclusion arrived without application of
mind or preceded without any reason cannot be
deemed to be declaration of law or authority of a
general nature binding as a precedent. Restraint in
dissenting or overruling is for sake of stability and
uniformity but rigidity beyond reasonable limits is
inimical to the growth of law.
111. This Court further in the case of Sundeep Kumar
Bafna v. State of Maharashtra and Anr.
MANU/SC/0239/2014 : (2014) 16 SCC 623, observed thus:
19. It cannot be overemphasized that the discipline
demanded by a precedent or the disqualification or
diminution of a decision on the application of the per
incuriam Rule is of great importance, since without it,
certainty of law, consistency of rulings and comity of
[2024:RJ-JD:35172-DB] (35 of 38) [HC-87/2024]
courts would become a costly casualty. A decision or
judgment can be per incuriam any provision in a
statute, Rule or regulation, which was not brought to
the notice of the court. A decision or judgment can
also be per incuriam if it is not possible to reconcile its
ratio with that of a previously pronounced judgment of
a co-equal or larger Bench; or if the decision of a High
Court is not in consonance with the views of this Court.
It must immediately be clarified that the per incuriam
Rule is strictly and correctly applicable to the ratio
decidendi and not to obiter dicta. It is often
encountered in High Courts that two or more mutually
irreconcilable decisions of the Supreme Court are cited
at the Bar. We think that the inviolable recourse is to
apply the earliest view as the succeeding ones would
fall in the category of per incuriam."
28. The first exception is rule of sub-silentio and it would
arise when the decision has been arrived at without proper
deliberation or without argument, without reference to the crucial
words of the rule and any authority. The second exception is rule
per incurium and it arises when the decisions are rendered in
ignorance or forgetfulness of some statutory provisions or
authority binding on the concerned court and a decision or
judgment can also be per incuriam if any provision in a statute,
Rule or regulation, was not brought to the notice of the court.
29. In the present case, the decisions relied upon by learned
counsel for the parties were rendered without any arguments
relating to the right of the detenue to make a representation and
consider such a representation in the process of approval under
Section 3(3) of the Act. Further, the Hon'ble Benches have not
considered the key words used "authority making the order" in
section 9 of the Act which comprehends both "State Government"
and "authorized officer". The right to make representation under
Section 9 of the Act would arise only after detention in pursuance
of detention order. The approval contemplated under Section 9 of
[2024:RJ-JD:35172-DB] (36 of 38) [HC-87/2024]
the Act is nothing to do with the representation. It is an internal
process in between the delegator and delegatee, which is ultimate
power vested with the delegator to maintain checks and balances
of the actions of the delegatee. At that stage, the detenue has no
role. The decision of apex court in case of Pramod Singla (cited
supra) while dealing with right of detenue to afford earliest
opportunity to make representation and its consideration as early
as possible has held that such right is independent. Such decision
was not taken note of by two division benches. In these
circumstances, those judgments have no precedential value.
Therefore, such contentions are negatived.
30. In the present case, the grounds for detentions were
furnished within the time stipulated after the actual detention was
made in pursuance of the detention order and the earliest
opportunity of making representation are built in the provision
itself. Three days contemplation is in pursuance of creating
environment of making earliest representation by furnishing all
the material which are the grounds of detention order. That has
been complied with in the present cases. Such detention orders
are in terms of compliance of Section 9 and Section 3 of the Act.
On this ground, impugned detention orders cannot be quashed
and set aside.
31. Dealing with the other contentions as seen from the
opinion of the Advisory Board, the opinion was rendered within the
stipulated period of 50 days from the date of actual detention and
there is no violation of Section 12 of the Act by the Advisory
Board. The contention with regard to non-existence of foundation
for making the detention order is required to be rejected. The
[2024:RJ-JD:35172-DB] (37 of 38) [HC-87/2024]
requirement of the Act is that the detenue must be a dangerous
person/habitual offender and further requirement is that such
actions of detenue must be prejudicial to the maintenance of
public order. Such acts amount to prejudicial to the maintenance
of public order when such a person is engaged or is making
preparations for engaging in any activities as a dangerous person,
which affect adversely or are likely to affect adversely, the
maintenance of public order.
32. The Apex Court in the case of Ameena Begum Vs. State
of Telangana & Ors., reported in (2023) 9 Supreme Court
Cases 587 has occasion to consider the distinction between
actions prejudicial to the law and order, and public order. The
breach of law in all cases does not lead to public disorder. There is
a clear difference between law and order, and public order. Each
contravention of law ultimately affects 'law and order' but before it
can be said to affect 'public order', it must affect the community or
the public at large. If such acts are directed against individual,
which do not disturb the society to the extent of causing general
disturbance of public tranquility, it cannot be said to be an act of
public disorder.
33. The reports which are the foundation for all the detention
orders passed by the District Magistrate show that the accused
involved in similar kind of activities on multiple occasions and such
acts in some of the cases they were convicted and in majority of
the cases, trials are pending; and the conclusion of detention
authority is that acts of detenue has tendency to affect the public
at large and there is a breach of public order by such actions. The
discretion exercised by the detention authority cannot be
[2024:RJ-JD:35172-DB] (38 of 38) [HC-87/2024]
supplanted by this Court because prima facie material was
available before the authority to come to such a conclusion.
Therefore, detentions of the corpuses are not suffered from any
kind of infractions under the Act.
34. In the result, the Habeas Corpus Petitions being devoid of
merits are hereby dismissed.
(MUNNURI LAXMAN),J (DR. PUSHPENDRA SINGH BHATI),J
NK/-
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