Rajasthan High Court - Jaipur
Om Prakash @ Oma @ Jeevan Ram Son Of Bodu ... vs The State Of Rajasthan on 7 May, 2022
Bench: Manindra Mohan Shrivastava, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Civil Writ (Habeas Corpus) Petition No. 377/2021
Om Prakash @ Oma @ Jeevan Ram son of Bodu Ram, resident of
Baral, Police Station, Ranoli, District Sikar is hereby submits a
representation through his next friend his wife Smt. Kanta wife
of Om Prakash, resident of Baral, Tehsil and District Sikar.
----Petitioner
Versus
1. The State of Rajasthan, through Secretary, Department of
Homes, Secretariat, Jaipur (Rajasthan).
2. The Joint Secretary (Homes), State of Rajasthan (Homes)
Group-9, Secretariat, Jaipur (Rajasthan).
3. The Superintendent of Police, Sikar, District Sikar
(Rajasthan).
4. The Superintendent, Central Jail, Jaipur, District Jaipur
(Rajasthan).
5. The Station House Officer, Police Station Ranoli, District
Sikar (Rajasthan)
6. Additional Director General of Police, Anti Human
Trafficking Unit, Jaipur (Rajasthan).
----Respondents
For Petitioner : Mr. Rajneesh Gupta Advocate with Mr.
Rahul Sharma Advocate.
For Respondents : Mr. N.S. Gurjar, Assistant Government
Advocate.
Mr. Kailash Chand, S.I., Station House
Officer, Ranoli (Sikar).
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE SAMEER JAIN
Order
7/05/2022
By the Court:(Per Manindra Mohan Shrivastava, Acting CJ.)
This habeas corpus petition under Article 226 of the Constitution of India has been filed by the petitioner assailing the (Downloaded on 11/05/2022 at 09:45:05 PM) (2 of 15) [HC-377/2021] correctness, legality and validity of order dated 07.12.2021 passed by the State after receipt of report of the Advisory Board dated 25.11.2021 in the matter of detention of the petitioner vide order dated 09.10.2021 passed by the District Magistrate, Sikar.
2. On 09.10.2021, the District Magistrate, Sikar, upon receipt of communication dated 08.10.2021 of the Superintendent of Police, District Sikar and upon scrutiny of documents and evidence, formed an opinion that the petitioner, Om Prakash @ Oma @ Jeevan Ram is actively involved in various criminal activities, which involve allegations of murder, attempt to murder, loot, dacoity, illegal transportation of liquor, rape, illegal possession of arms and, therefore, is a dangerous person as defined under Section 2, sub-section (c) of the Rajasthan Prevention of Anti- Social Activities Act, 2006 (for short 'the PASA Act, 2006'). The District Magistrate, Sikar, on the basis of the material placed before it, formed an opinion that the petitioner is habitual in committing offences or attempts to commit or abet the commission of offences under the Indian Penal Code, 1860. On such satisfaction, with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary so to do and the District Magistrate, Sikar passed an order of detention. After drawing various proceedings and upon receipt of report of the Advisory Board constituted under the PASA Act, 2006, the petitioner was directed to be detained for a period of one year from 09.10.2021 in exercise of powers under Section 13(1) of the PASA Act, 2006 vide impugned order dated 07.12.2021 passed by the State Government.
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3. Aggrieved by the aforesaid order and proceedings, the petitioner has filed this petition.
4. Learned counsel for the petitioner argued that the entire proceedings, including detention order dated 09.10.2021, report of the Advisory Board dated 25.11.2021 and consequential order dated 07.12.2021 passed by the State Government suffer from serious violation of mandatory provisions contained in the PASA Act, 2006 and, therefore, violative of the provisions of the PASA Act, 2006, thus, unconstitutional being violative of Article 21 of the Constitution of India.
5. Learned counsel for the petitioner, referring to various grounds urged in the petition, argued that the order passed by the State Government on 07.12.2021 is non-speaking. It has been further argued that though the petitioner has been directed to be detained for a period of one year, upon receipt of report of the Advisory Board dated 25.11.2021, but copy of the said report has not been supplied to the petitioner. It is further argued that the Advisory Board has failed to properly scrutinise the material placed before it before submitting its report to the State Government. Further argument is that the order of detention is illegal as according to the mandatory provisions contained in Section 11 of the PASA Act, 2006, the matter was not placed before the Advisory Board within a period of three weeks and merely because it was forwarded to the Advisory Board within a period of three weeks, would not constitute compliance of Section 11 of the PASA Act, 2006, as the matter was placed for the first time before the Advisory Board on 25.11.2021, which is beyond the period of three weeks. It has also been argued that the (Downloaded on 11/05/2022 at 09:45:05 PM) (4 of 15) [HC-377/2021] petitioner-detenue was not communicated the approval of the State Government regarding his detention, which has seriously prejudiced the case of the petitioner. The date of detention being 09.10.2021, the Advisory Board was required to submit its report to the State Government within 50 days from the date of detention, which has also been violated. It has also been vehemently argued that the petitioner had submitted a representation to the Principal Secretary, Department of Home, Government of Rajasthan in reference of notice of detention dated 09.10.2021 served upon the petitioner-detenue by the District Magistrate, Sikar, but the same was never forwarded to the Advisory Board, therefore, the Advisory Board had no occasion to examine the same and thus, the entire proceedings are vitiated. Lastly, it is submitted that without there being sufficient material on record, the detention order was passed, approved by the State Government and even the Advisory Board has acted illegally and perversely in recording the finding that there exists sufficient material to confirm the order of detention. In support of his contentions, learned counsel for the petitioner has placed reliance upon the decision of Division Bench of this Court in the case of Kamal Kishore Tripathi Vs. The State of Rajasthan, 2017 (3) WLC (Raj.), 547.
6. On the other hand, learned State Counsel, replying to various grounds urged before us, would submit that the proceedings have been drawn in strict compliance of the provisions contained in the PASA Act, 2006. He would submit that upon receipt of report from the Superintendent of Police, District Sikar, the District Magistrate, Sikar scrutinised the material on (Downloaded on 11/05/2022 at 09:45:05 PM) (5 of 15) [HC-377/2021] record and formed bona fide opinion that with a view to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it was necessary to detain him. The order of detention along with the grounds was served upon the detenue within the prescribed period. The State Government also approved the same within the prescribed period. Vide order dated 26.10.2021, case of detention of the petitioner was referred to the Advisory Board constituted in accordance with the provisions of Section 10 of the PASA Act, 2006 along with the order of detention dated 09.10.2021 issued by the District Magistrate, Sikar along with the grounds of detention.
Learned State Counsel would further submit that the allegation made in the petition that though the representation was moved by the petitioner, but the same was not forwarded to the Advisory Board, is not correct because no representation was preferred by the petitioner against the order of detention dated 09.10.2021 to the State Government till the date, reference under Section 11 of the PASA Act, 2006 was made to the Advisory Board. He would next submit that the entire case of the petitioner along with detention order dated 09.10.2021 and grounds of detention were closely scrutinised by the Advisory Board in its meeting dated 25.11.2021 and the Advisory Board recorded satisfaction, after affording opportunity of hearing to the petitioner that there exists sufficient material in concurring with the order of approval of the State Government as well as the order of District Magistrate, Sikar in the matter of detention and accordingly confirmed the order of detention of the petitioner-detenue for the maximum period as provided under the PASA Act, 2006. He (Downloaded on 11/05/2022 at 09:45:05 PM) (6 of 15) [HC-377/2021] would submit that the Government referred the matter to the Advisory Board vide its memo dated 26.10.2021, which is sufficient compliance of requirement of Section 11 of the PASA Act, 2006. Therefore, it is contended that detention of the petitioner does not violate the provisions of the PASA Act, 2006. Learned State Counsel further argued that the mandatory requirement of sending the report by the Advisory Board within a period of 50 days from the date of detention of the detenue, as required under Section 12 of the PASA Act, 2006, has not been violated. Lastly, it is submitted that the detention order was passed by the District Magistrate, Sikar, approved by the State Government and also confirmed by the Advisory Board on the basis of sufficient material to form an opinion as required under the law for placing the petitioner under preventive detention for a period of one year with effect from 09.10.2021. Therefore, no interference is called for.
7. We bestowed our serious consideration to various grounds raised by the writ petitioner in the petition while assailing the order and proceedings of detention and perused the documents placed by respective parties before us as also the original records of the Advisory Board along with its report dated 25.11.2021.
8. One of the grounds raised to assail the proceedings and order of detention is that the mandatory requirement of Section 11 of the PASA Act, 2006, of placing before the Advisory Board the grounds on which detention order has been made and representation, were not placed within three weeks from the date of detention. The argument is advanced mainly on the basis that even though the State Government, in exercise of powers under (Downloaded on 11/05/2022 at 09:45:05 PM) (7 of 15) [HC-377/2021] Section 11 of the PASA Act, 2006, referred the case of detention of the petitioner to the Advisory Board vide its memo dated 26.10.2021, it was not placed before the Advisory Board within three weeks as mandatorily required under Section 11 of the PASA Act, 2006 inasmuch as it was placed before the Advisory Board only on 25.11.2021, which is beyond three weeks.
In order to appreciate the aforesaid submission, it would be useful to refer to the provision contained in Section 11 of the PASA Act, 2006, which is extracted hereinbelow:
"11. Reference to Advisory Board.-In every case where a detention order has been made under this Act the State Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under section 10 the grounds on which the order has been made and the representation, if any, made by the "detenue"
and where the order has been made by an authorized officer, also the report made by such officer under sub-section (3) of section 3."
9. The legal requirement of placing before the Advisory Board the grounds on which the order of detention has been made is pari materia to the provisions contained in Section 10 of the National Security Act, 1980. The provision casting a duty on the appropriate Government to place before the Advisory Board the order of detention along with its grounds was considered by their Lordships in the Hon'ble Supreme Court in the case of Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh and Another, (1983) 4 SCC 537. The words, "place before" were interpreted and it was held that Section 10 of the National Security Act, 1980 does not mean anything more than, "forward to" or "submit before" the Advisory Board, the relevant papers relating to the (Downloaded on 11/05/2022 at 09:45:05 PM) (8 of 15) [HC-377/2021] detention of the detenue. It was held by the Hon'ble Supreme Court as below:
"5. The last point urged on behalf of the petitioner is that there has been a violation of the provisions of the Section 10 of the Act because the Advisory Board had not considered the case of the petitioner within three weeks from the date of detention. As already noticed, the petitioner submitted his representation to the District Magistrate against the detention only on November 24, 1982 even though he had been arrested and placed under detention on November
8. The said representation reached the State Government on December 6, 1982. In the meantime, the petitioner's case had been referred by the State Government to the Advisory Board on November 18 itself. The representation received from the petitioner was forwarded by the State Government to the State Advisory Board on December 9, 1982. The Advisory Board held its meeting on December 10, 1982 and, after affording a personal hearing to the petitioner, made its report finding sufficient cause for the detention of the petitioner. The argument put forward on behalf of the petitioner is that Section
10 mandatorily enjoins the State Government to take steps to see that the case of the detenu is considered by the Advisory Board within three weeks from the date of detention. We are unable to see any merit in this contention. Section 10 reads:
Save as otherwise expressly provided in this Act, in every case where a detention order has been made under this Act, the appropriate Government shall, within three weeks from the date of detention of a person under the order, place before the Advisory Board constituted by it under Section 9, the grounds on which the order has been made and the representation, if any, made by the person affected by the order, and in case where the order has been made by an officer mentioned in sub-section (3) of Section 3, also the report by such officer under sub-section (4) of that section.
Under the section, a duty is cast on the appropriate Government to "place before" the Advisory Board constituted under Section 9 within three weeks from the date of detention, the grounds on which the order of detention has been made and the representation, if any, made by the person affected by the order. The petitioner's (Downloaded on 11/05/2022 at 09:45:05 PM) (9 of 15) [HC-377/2021] counsel wanted us to interpret the words "place before the Advisory Board" as meaning "get considered by the Advisory Board". We are wholly unable to accede to this argument. Under the terms of the section, the duty cast on the appropriate Government is to forward to the Advisory Board constituted under Section 9 within three weeks from the date of detention, the papers pertaining to the detention of the detenu consisting of the grounds on which the order has been made, the representation, if any, made by the person affected by the order, etc. It is to be remembered that the Advisory Board is not an entity subordinate to the Government. It is a wholly independent body consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court. It is entirely for the Advisory Board to regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under Section 11 of the Act which has specified a time limit or seven weeks from the date of detention for the submission of the Board's report to the appropriate Government. It is, therefore, wholly wrong to interpret the words "place before" as meaning anything more than forward to or submit before the Advisory Board the relevant papers relating to the detention of the detenu. In the present case, the Advisory Board has disposed of the petitioner's case well within the period of seven weeks specified in sub-section (1) of Section 11 of the Act. This contention of the petitioner is also, therefore, devoid of substance."
10. Relying upon the aforesaid decision of the Hon'ble Supreme Court, Division Bench of this Court in the case of Kamal Kishore Tripathi (supra) interpreted the legal requirement under Section 11 of the PASA Act, 2006 and held that the legal requirement of placing before the Advisory Board would mean, "forwarding to" or "submitting before" the Advisory Board the relevant papers relating to the detention of the detenue. It was held thus:
"10. The Supreme Court in Raisuddin alias Babu Tamchi Vs. State of Uttar Pradesh & Another, (1983) 4 SCC 537 held that Section 10 of the National Security Act, 1980 casts a duty on the appropriate Government to forward to the Advisory Board within three weeks from the date of detention, the relevant papers pertaining to the (Downloaded on 11/05/2022 at 09:45:05 PM) (10 of 15) [HC-377/2021] detention. Therefore, the words 'place before' in that section does not mean anything more than 'forward to' or 'submit before' the Advisory Board the relevant papers relating to the detention of the detenu. The Advisory Board is a wholly independent body which can regulate its schedule of holding meetings and conducting its business in accordance with the procedure laid down under Section 11 of the Act, which has specified a time limit of seven weeks from the date of detention for the submission of the Board's report to the appropriate Government. In view of aforesaid judgment of the Supreme Court in Raisuddin alias Babu Tamchi(supra), what is required of the State Government is to forward grounds of detention of the detenu to the Advisory Board within three weeks."
Applying the aforesaid decision of the Hon'ble Supreme Court and the decision of Division Bench of this Court to the admitted facts of the present case, it is apparent that the order of detention was passed on 09.10.2021 and the State Government, in exercise of powers under Section 11 of the PASA Act, 2006, referred the case along with order of detention as well as the grounds of such detention to the Advisory Board constituted under Section 10 of the PASA Act, 2006 vide memo dated 26.10.2021. We have perused the original records of the Advisory Board, which contains memo dated 26.10.2021 of the State Government addressed to the Chairperson, Advisory Board, PASA at Jaipur. The said letter of reference was forwarded along with the order of detention dated 09.10.2021 issued by the District Magistrate, Sikar along with the grounds of detention. Thus, apparently the aforesaid exercise was done within a period of three weeks from the date of detention of the petitioner and, therefore, there is no violation of legal requirement of placing before the Advisory Board the grounds on which the order has been made. Contention of (Downloaded on 11/05/2022 at 09:45:05 PM) (11 of 15) [HC-377/2021] learned counsel for the petitioner in this regard is, therefore, rejected.
11. The other principal ground of challenge made in the petition is that the representation of the petitioner was not placed for consideration of the Advisory Board. Relying upon the decision of Division Bench of this Court in the case of Kamal Kishore Tripathi (supra), it is vehemently contended that such a failure vitiated the entire proceedings and order of detention.
12. We have given our anxious consideration to the aforesaid submission made by learned counsel for the petitioner with reference to the pleadings and various documents including original records of the Advisory Board. In para 4 of the writ petition, the petitioner has averred that he submitted a detailed representation to the Principal Secretary, Department of Home and copy of that representation has also been annexed with the petition as Annexure-2. However, the petitioner has not placed any acknowledgment or receipt of such representation by the Principal Secretary, Department of Home. The said document (Annexure-2) also does not bear any acknowledgment or receipt of the representation, which the petitioner claims to have submitted before the Principal Secretary, Department of Home, Government of Rajasthan. The memo of reference by the State Government dated 26.10.2021, as referred to hereinabove, also clearly mentions therein that the petitioner has not made any representation regarding detention order dated 09.10.2021 to the State Government till the date it was forwarded by the State Government to the Chairperson of the Advisory Board. Original records of the Advisory Board also do not contain any such (Downloaded on 11/05/2022 at 09:45:05 PM) (12 of 15) [HC-377/2021] document evidencing receipt of such representation made by the petitioner to the Government. No material has been placed by the petitioner before this Court to satisfy that such representation was made and received by the State Government.
Therefore, in the absence of there being any proof based on any material to arrive at satisfaction that though representation was made by the petitioner, but it was kept with the State Government and not forwarded to the Advisory Board, the petitioner is not entitled to any benefit in that regard. Though in the case of Kamal Kishore Tripathi (supra), it has been held that rejection of representation by the State Government and failure to forward the representation to the Advisory Board renders the order and proceedings of detention illegal, on facts, this Court finds that the petitioner has not succeeded in establishing that he, in fact, made a representation to the State Government, which was not forwarded to the Advisory Board. Therefore, the aforesaid ground is also not made out to render the order and proceedings of detention as illegal on the ground of violation of provisions contained in Section 11 of the PASA Act, 2006.
13. Another argument of learned counsel for the petitioner that there is violation of mandatory provision contained in Section 12 of the PASA Act, 2006 requiring submission of report by the Advisory Board to the State Government within 50 days from the date of detention of the detenue, is also not made out, on admitted facts of the present case. Detention order was passed on 09.10.2021 and Advisory Board submitted its report dated 25.11.2021 to the State Government. The Advisory Board, (Downloaded on 11/05/2022 at 09:45:05 PM) (13 of 15) [HC-377/2021] therefore, complied with the legal requirement of submission of its report to the State Government within 50 days from the date of detention of the detenue. This is clear from order dated 07.12.2021 (Annexure-3) passed by the State Government in exercise of powers conferred under Section 13, sub-section (1) of the PASA Act, 2006, ordering detention of the petitioner for a period of one year with effect from 09.10.2021.
14. One of the arguments raised by learned counsel for the petitioner is that detention order dated 09.10.2021 passed by the District Magistrate, Sikar does not contain any material. It has also been argued that the Advisory Board, without sufficient material, has confirmed the order of detention on the grounds as stated in the order of detention.
15. We have gone through the order dated 09.10.2021 passed by the District Magistrate, Sikar as also detailed report of the Advisory Board dated 25.11.2021. The grounds for detention supported by material disclose that the detenue is involved in various criminal activities and as many as 20 cases were registered against him from time to time. The list of the cases registered against the petitioner-detenue submitted along with their status was also closely scrutinised by the District Magistrate, Sikar while passing order dated 09.10.2021 as also by the Advisory Board. It has been observed that in some cases, detenue has been acquitted and in other cases, trial is pending against him. Formation of opinion and satisfaction arrived at that the detenue is a dangerous person as defined under the PASA Act, 2006, is based on relevant material that offences under various provisions of Indian Penal Code, 1860 have been registered (Downloaded on 11/05/2022 at 09:45:05 PM) (14 of 15) [HC-377/2021] against him. Looking to large number of cases pending against the petitioner-detenue, his criminal activities, bona fide opinion has been formed not only by the District Magistrate, Sikar that order of detention is required to be passed, but also by the Advisory Board that the detenue is a dangerous person and threat to the society affecting the public adversely at large.
16. To satisfy ourselves that the legal requirements of the PASA Act, 2006 have been duly complied with, we perused the original records of the Advisory Board from which it is revealed that upon receipt of detailed report from Superintendent of Police, District Sikar dated 08.10.2021, the District Magistrate, Sikar passed detention order dated 09.10.2021. Copy of detention order along with the grounds was served upon the petitioner, who was detained in jail and his acknowledgment was also obtained. Not only this, order of detention was also served on the relatives of the detenue and acknowledgment was also obtained. Further from the records, we find that the State Government, upon receipt of detention order dated 09.10.2021, approved the same vide order dated 14.10.2021 and thereafter, reference was made to the Advisory Board vide memo dated 26.10.2021 along with the order of detention and the grounds for such detention. After receipt of report of the Advisory Board, finally, the State Government passed the impugned order dated 07.12.2021, placing the petitioner under detention for a period of one year from the date of detention, i.e., 09.10.2021. Therefore, it cannot be said that order dated 07.12.2021 was passed by the State Government is a non-speaking order.
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17. In view of above consideration, we do not find any illegality in the proceedings and the order of detention of the petitioner calling for any interference in exercise of our jurisdiction under Article 226 of the Constitution of India.
18. In the result, habeas corpus writ petition is dismissed. (SAMEER JAIN),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ MANOJ NARWANI/ (Downloaded on 11/05/2022 at 09:45:05 PM) Powered by TCPDF (www.tcpdf.org)