Hingol Singh v State of Rajasthan and others
Rajasthan High Court
JODHPUR BENCH
31 July 2012
D. B. Civil Writ (Habeas Corpus) Petition No. 5375/2012
The Order of the Court was as follows :
1. By way of this petition, the detenue Hingol Singh has questioned the proceedings for his detention under the Rajasthan Prevention of Anti-Social Activities Act, 2006 as being wholly illegal and unauthorised.
2. The relevant aspects of the law applicable and the background facts could be noticed as follows: The Rajasthan Prevention of Anti-Social Activities Act, 2006 (‘the Act’ hereafter) received the assent of the President on 25.02.2008; and came into force from 05.03.2008, the date of its publication in the official Gazette.
The enactment is essentially to provide for preventive detention of boot-leggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities, which are prejudicial to the maintenance of public order. For an eye-view of the scheme of the Act and its provisions, so far relevant for the present case, it could be noticed that the expressions “boot-legger”, “dangerous person” and “habitual” are defined, respectively, in clauses (b), (c) and (g) of S. 2 of the Act as under:-
(b) “boot-legger” means a persons who habitually distills, manufactures, stores, transports, imports, exports, sells or distributes any liquor, intoxicating drug or other intoxicant in contravention of any provision of the Rajasthan Excise Act, 1950 (Act No.2 of 1950) and the rules and orders made thereunder, or of any other law for the time being in force or who knowingly expends or applies any money or supplies any animal, vehicle, vessel or other conveyance or any receptacle or any other material whatsoever in furtherance or support of the doing of any of the things described above by or through any other person, or who abets in any other manner the doing of any such thing;
(c) “dangerous person” means a person, who either by himself or as member or leader of a gang, habitually commits, or a attempts to commit or abets the commission of any of the offences punishable under chapter XVI or chapter XVII of the Indian Penal Code, 1860 (Central Act 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 s. 51 of the Wild Life (Protection) Act, 1972 (Central Act No.53 of 1972) or any offence punishable u/s. 67 of the Information Technology Act, 2000 (Central Act, No.21 of 2000);
(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 omission;
3. The principal and substantive provision in the enactment in regard to the powers to make the orders for detention of certain persons is contained in S. 3 of the Act that reads as under:-
“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 authorised officer he shall forthwith report the fact to the State Government together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing, on the matter, and no such order shall remain in force for more than twelve days after the making thereof, unless, in the meantime, it has been approved by the State Government.
(4) For the purpose of this section, a person shall be deemed to be “acting in any manner prejudicial to the maintenance of public order” when such person is engaged in or is making preparation for engaging in any activities whether as a boot-legger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order.
Explanation.- For the purpose of this sub-section public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia if any of the Activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the public at large or any section thereof or a grave or widespread danger to life, property or public health.”
4. Thus, evident it is that primarily, the power to make an order of detention under the Act in respect of any person, per sub-s. (1) of Section 3, is with the State Government; and such power can be exercised upon satisfaction of the Government that it is necessary to make an order of detention with a view to prevent such person from acting in any manner prejudicial to the maintenance of public order. Then, the State Government may direct the concerned Magistrate to exercise such powers as conferred by sub-s. (1) upon existence of the circumstances and the conditions as enumerated in sub-s. (2) of S. 3. Further, as per sub- s. (3) of Section 3, when any order of preventive detention of any person is made by an authorised officer, he is required to forthwith report the fact to the State Government together with the grounds; and no such order would remain in force for more than 12 days unless approved by the State Government.
5. S. 9 of the Act requires that the relevant grounds of order of detention are to be disclosed to the detenue while affording him earliest opportunity of making representation to the State Government. U/s. 10 of the Act, an Advisory Board is required to be constituted, consisting of a Chairman and two other Members who are or have been the Judges of any High Court. U/s. 11 of the Act, the State Government is required to place before the Advisory Board the grounds on which the detention order has been made within three weeks from the date of detention of a person with the representation, if any, made by the detenue and with the report, if there be, of the Authorised Officer. Per Section 12, the Advisory Board is to submit its report to the State Government within 50 days from the date of detention after considering the material placed before it; and after calling for such further information as deemed necessary and after hearing the detenue, where considered essential or desired by the detenue.
In case, where the Advisory Board would opine that there was sufficient cause for detention, the State Government may confirm the detention order; and upon the Advisory Board opining otherwise, the State Government would revoke the detention order. S. 14 provides for the maximum period of detention under the Act to be one year from the date of detention. Per sub-s. (1) of Section 15, a detention order can be revoked or modified by the State Government at any time for reasons to be recorded in writing. There are other corollary and ancillary aspects contained in the enactment, which need not be dilated herein. However, the notifications as issued by the State Government under S. 3 of the Act need to be noticed in view of the submissions made.
6. On 18.08.2008, the State Government, by way of a notification under sub-s. (2) of S. 3 of the Act, directed that the District Magistrates of all the Districts shall exercise the powers conferred by sub-s. (1) of S. 3 ibid. This notification, issued in a generalised form, was not approved by a Division Bench of this Court in the order dated 05.10.2009 as passed in a batch of petitions led by Habeas Corpus Petition No.13569/2008: Anil Nayak Vs. State of Rajathan & Ors.: 2009 (2) Cr.L.R. (Raj.) 1598 while observing, inter alia, as under:-
“19. Based on record, this Court can observe that subjective satisfaction of State Government conferring powers upon all the District Magistrates of Rajasthan in general was without examining as to whether there were circumstances prevailing or likely to prevail in local limits of their jurisdiction . There is no material on record to satisfy such circumstances prevailing or likely to prevail in future calling upon State Government to confer/delegate its powers u/s. 3(2) of the Act vide notification dt.18.8.2008 to all District Magistrates- in absence whereof notification impugned is in clear violation of sub-s. (2) of S. 3 of PASA Act.
20. We are therefore of the opinion that the very authorisation under the notification dt.18.8.2008 is illegal and invalid – on the basis whereof, District Magistrates of Jaipur, Kota, Jhunjhunu, Sawai Madhopur and Alwar had no jurisdiction and could not have exercised powers of detaining authority u/s. 3(1) of PASA Act. In consequence whereof, the very orders of detention impugned herein passed against the detenu, to whom present habeas corpus petitions relate, cannot be said to be legally sustainable and deserve to be set aside. In such view of the matter, the other grounds of challenge taken up by the Counsels for the petitioners need not be taken up by us.
21. Before parting with this judgment, we may reiterate while observing that analogous notification, as impugned herein was issued by the State Government u/s. 3(2) of National Security Act, 1980 conferring powers of detaining authority upon all the District Magistrates had come up for consideration in Ram Singh Vs. State of Rajasthan, 1993 (2) RLR 3751993 Indlaw RAJ 20 and this Court observed that such general authorization upon all District Magistrates conferring powers of detaining authority cannot be held to be justified and is not in consonance with the provisions of preventive laws.”
7. The State Government, thereafter, proceeded to confer the powers on the District Magistrate, Barmer by a notification dated 21.04.2011, which is relevant for the present purpose and is reproduced as under:-
“The Rajasthan Prevention of Anti-Social Activities Act, 2006– Sec.3(2)- District Magistrate, Barmer to exercise the powers conferred by Sec.3(1) of the said Act.
Whereas having regard to the circumstances prevailing i.e., the anti-social activities in various part of the Barmer District are still persisting and certain undesirable elements are acting prejudicial to the maintenance of the public order and continuation of supplies and services, it is necessary to prevent in effective manner the Activities of anti-social elements and persons acting prejudicial to public order, supplies and services essential to community and to put a decisive step to curb boot- leggers, activities of dangerous persons, drug-offenders, immoral traffic offenders and property grabbers which are still prevailing in the Barmer district.
Therefore, having regard to the circumstances prevailing in the Barmer District, the State Government is satisfied that it is necessary to authorise the District Magistrate, Barmer to exercise the powers under sub-sec.(1) of Sec.3 of theRajasthan Prevention of Anti-Social Activities Act, 2006 within their respective jurisdiction.
Now, therefore, in exercise of the powers conferred under sub- sec.(2) of Sec.3 of the Rajasthan Prevention of Anti-Social Activities Act, 2006 (Act No.1 of 2008), the State Government hereby directs the District Magistrate, Barmer to exercise the powers conferred by sub-sec.(1) of Sec.3 of the said Act.”
8. Coming to the relevant factual aspects, it appears that on 15.02.2011, the Superintendent of Police, Barmer submitted a report to the District Magistrate, Barmer and prayed for the detention of the present petitioner under the provisions of the Act; and the District Magistrate sent the matter to the Government for appropriate action.
However, the Government sent the matter back to the District Magistrate on 18.05.2011 with reference to the aforesaid notification dated 21.04.2011 while observing that he had been conferred the relevant powers under the Act.
9. Thereafter, on 15.07.2011, the District Magistrate, Barmer obtained legal opinion in the matter and ultimately, took the view that sufficient ground did not exist so as to make a detention order against the petitioner; and returned the matter to the Superintendent of Police, Barmer while advising that the matter could be sent for consideration afresh if new facts came to the knowledge.
However, on 16.08.2011, the Superintendent of Police, Barmer reiterated his request for detention of the petitioner but without stating any new fact; and on 14.10.2011, the District Magistrate, Barmer again returned the matter with the comment that no new fact had been brought on record. It appears that the Superintendent of Police, Barmer yet and again, under his letter dated 25.10.2011, on the same set of facts, made the request for detention of the petitioner.
10. The learned counsel for the petitioner has referred to the certified copies of the note-sheets in the relevant case file and has contended that despite the position being clear that no new facts had been stated, the District Magistrate proceeded to order the petitioner’s detention by the questioned order dated 02.01.2012. The learned counsel has particularly referred to Note No.40 of the note-sheet dated 02.01.2012 (at page 69 of the paper-book), the relevant part whereof reads as under:-
[VERNACULAR PORTION DELETED]
11. It is submitted that the questioned detention order dated 02.01.2012 came to be passed on the basis of the considerations aforesaid as stated at Note No.40; and it is pointed out that the State Government approved the detention order on 12.02.2012; then, the petitioner appeared before the Hon’ble Members of the Advisory Board on 13.02.2012; and thereafter, pursuant to the recommendations of the Advisory Board, the State Government confirmed the detention order on 24.02.2012.
12. The petitioner has filed this writ petition, inter alia, with the contentions that the impugned detention order is illegal and unauthorised; and that the Authorised Officer i.e., the District Magistrate rather acted under the directions of some other authority like the Superintendent of Police.
13. In this writ petition, on 08.06.2012, we took note of some of the glaring facts and circumstances, with reference to the submissions made, in the following:-
“During the course of hearing of this matter, we have noticed some of glaring facts and circumstances like:
(i) The proposition for detention of the petitioner under the Act of 2006 was twice over declined by the District Magistrate, Barmer but then, at the later stage with reference to the so-called conference with the Superintendent of Police, Barmer, the learned District Magistrate proceeded to pass the order on 02.01.2012. It has been pointed out that in such a meeting, no new facts were mentioned and whatever stated, was not in conformity with the record. In particular, it is pointed out that a specific assertion was made before the District Magistrate (vide paragraph 40 of the Office Note – at page No. 60 of the paper book) that several cases were registered against the petitioner and in all of them, S. 143 IPC was involved which was indicative of the detenu having formed a gang. It is asserted, however, on behalf of the petitioner that in none of the cases, he has been charge-sheeted for the offence under S. 143 IPC.
(ii) The petitioner had been proceeded under the provisions of the Rajasthan Control of Gundas Act, 1975 and by the order dated 29.08.2011, he was ordered to be removed from Barmer District and placed under the control of Superintendent of Police, Jailsamer. It is submitted that the petitioner was regularly attending the police station in district Jaisalmer for about 4 months when the impugned order of detention came to be passed against him by the District Magistrate, Barmer. Nothing has been pointed out regarding the Activities of the petitioner during this period of his residence in the District Jaisalmer.”
(emphasis supplied)
14. While we also noticed that several legal issues were sought to be raised by the learned counsel for the petitioner including those on the validity of the notification dated 21.04.2011 but, before entering into the grounds sought to be urged, it was considered expedient that the entire matter be re-considered by the State Government itself. The Government was directed accordingly, while making it clear that on being satisfied, it was always open for the Government to revoke or modify the order of detention, as per S. 15 of the Act.
15. Thereafter, on 04.07.2012, whatever placed before us was a cryptic order said to have been made by the Deputy Secretary to the Government in its Home Department on 18.06.2012 in the purported re-consideration of the matter. The relevant part of the order dated 18.06.2012 reads as under:-
[VERNACULAR PORTION DELETED]
16. After going through the said order dated 18.06.2012, we expressed reservations on the manner of dealing with the matter by the Government and passed the following order:-
“In this case, on 08.06.2012, after noticing the outline of the submissions of the learned counsel; and further noticing certain other legal points, sought to be urged, we kept the matter pending but then, while indicating the glaring facts and circumstances on the basis of arguments of the counsel for the petitioner and other factual aspects, we directed reconsideration of the matter of the petitioner by the State Government with reference to S. 15 of the Act of 2006 so as to consider as to whether the order of detention be revoked or modified because, prima facie, we found that all the details of the factual aspects had not gone into consideration while passing of the order against the petitioner.
We left the matter to be reconsidered by the respondents within a week from the date of the order and the matter was ordered to be listed in the week commencing from 18.06.2012, subject to the availability of the Bench. The said date fell in summer vacation and regular Division Bench being not available, the matter came up before us on 02.07.2012; and was ordered to be placed today.
On behalf of the petitioner, an additional affidavit of his wife has been filed, placing on record a copy of the order said to have been passed by the Deputy Secretary, Home Department on 18.06.2012 purportedly reconsidering the matter pursuant to our order dated 08.06.2012.
After going through the said order dated 18.06.2012, we have expressed our reservations on the manner of dealing with the matter by the Government, where it appears, prima facie, that the basic factual aspects, which were required to be examined thoroughly, have not been examined; and where, the other legal aspect that remains sub-judice with this Court was unnecessarily commented upon. Upon our expressing reservations, the learned Additional Advocate General-Mr G.R.Punia submits that the authorities concerned shall stand advised to thoroughly reconsider the matter in accordance with law and to pass a fresh order.
The matter concerns preventive detention and the petitioner is said to be in detention since 02.01.2012. However, at the request of the learned Additional Advocate General, we grant a day’s time for reconsideration of the matter in accordance with law.
List this petition on 06.07.2012.”
17. Thereafter, a detailed order came to be passed by the said Deputy Secretary on 05.07.2012 while stating as under:-
[VERNACULAR PORTION DELETED]
18. When the aforesaid order was taken into consideration during the course of hearing of the matter, the learned counsel for the petitioner reiterated his stand that the petitioner had never been charge-sheeted for an offence under S. 143 IPC. The learned Additional Advocate General, after examining the record, indeed, found such submissions correct and sought time for filing additional affidavit of the Officer who had passed the order on 05.07.2012. Then, an additional affidavit came to be filed, the contents whereof could be taken note of as under:-
“1. That the order No.36(10)Home-9/2012 dated 05/07/2012 was passed by me on the basis of record of the case. In line No.8 and 9 of para 2 at page No.3 of this Order it has been mentioned that the detenue has been charge sheeted under S. 143 IPC. This had been stated on the basis of the information regarding pending cases against the detenue furnished by Police Station, Sadar, Barmer and Additional Public Prosecutor, Grade I Barmer.
2. That on re-examination of the entire record it has been observed that though FIR No.273/2008 was registered under S. 143 along with other sections but charge sheet was not filed under S. 143 against the detenue. The fact regarding pendency of charge under S. 143 IPC against detenue mentioned in the order was inadvertently and unintentionally mentioned on the basis of the information regarding pending cases against the detenue furnished by Police Station, Sadar, Barmer and Additional Public Prosecutor, Grade I Barmer. Inconvenience caused to the Hon’ble Court and the Petitioner is deeply regretted.”
(emphasis supplied)
19. The learned counsel for the petitioner has strenuously argued that the District Magistrate, Barmer could not have passed any order of preventive detention under sub-s. (2) of S. 3 of the Act as he had not been legally authorised to do so; and the authorisation notification dated 21.04.2011 is not in conformity with law.
The learned counsel has referred to the requirements of sub- s. (2) of S. 3 of the Act and so also to the observations of the Division Bench of this Court in the case of Ram Singh Vs. State of Rajasthan & Anr.: 1993 (2) RLW 383 1993 Indlaw RAJ 20 and submitted that when the notification does not say that the District Magistrate could exercise the powers if being satisfied as provided in sub-s. (1) of S. 3 ibid., the authorisation as issued on 21.04.2011 cannot be said to be in accord with law.
20. Apart from the above, the learned counsel has argued that the proceedings as taken up in this matter against the petitioner and the orders as passed against him had been the result of total non-application of mind by the District Magistrate concerned who acted rather on the instructions or pressure of the Superintendent of Police, Barmer, as is borne out from the fact that twice over the matter was returned after finding that no case was made out for preventive detention but, on the third occasion, on the same facts and allegedly on a so-called conference with the Superintendent of Police, the District Magistrate chose to pass the questioned order dated 02.01.2012.
The learned counsel vehemently contended that even in the propositions as put forward by the Superintendent of Police, a crucial aspect was wrongly projected that the petitioner had formed a gang and had been charge-sheeted for offence under S. 143 IPC though the petitioner had never been so charge- sheeted. The learned counsel contended that the petitioner could not have been termed as a ‘dangerous person’ and the authorities have failed to consider that even if he was found involved in some of the criminal cases, there had not been any case under Chapter XVI or Chapter XVII of the Indian Penal Code against him after the year 2008.
21. The learned counsel further submitted that very basic and fundamental material has altogether been omitted from consideration by the authorities that at the relevant point of time, the petitioner was already under an externment order dated 29.08.2011 as passed by the Additional District Magistrate, Barmer under the Rajasthan Control of Goondas Act, 1975 (‘the Act of 1975’); and, as on the date of passing of the questioned order dated 02.01.2012, he was not in Barmer District for last about 4 months. The learned counsel contended that it could not have, therefore, been concluded by the District Magistrate, Barmer that the petitioner, at the relevant time, was indulging in any such activity in his area of jurisdiction that was prejudicial to the maintenance of public order.
The learned counsel further submitted that even the order of detention was sought to be implemented in a wholly unlawful manner; and rather the authorities had shown scant respect to the rights of the life and liberty of the petitioner. Elaborating on this aspect, the learned counsel submitted that as on 02.01.2012, the petitioner was indeed at Jaisalmer and he was, in fact, taken into custody at Jaisalmer, as is borne out from the attendance-sheet (Annex.P/26) but then, he was allegedly shown detained on 03.01.2012 at Barmer.
This, according to the learned counsel, was done in order to conceal the fact that the petitioner was not in Barmer District at the relevant time. The learned counsel referred to S. 4 of the Act and submitted that the detention order could have been executed at any place in the State and for all practical purposes, it was executed in Jaisalmer but intentionally, the record was created in the manner as if to conceal his residence at the relevant time in District Jaisalmer.
22. The learned counsel yet further submitted that even before the Advisory Board, the respondents did not place all the facts and definitely omitted to point out the fact regarding returning of the matter twice over by the District Magistrate and so also the fact that at the relevant time, the petitioner was not in Barmer District for 4 months. The learned counsel has particularly referred to the list of documents as sent by the District Magistrate on 04.01.2012 with his report (Annex.P/28 – at page 133 of the paper-book) and pointed out that the documents relating to the previous noting of the District Collector, Barmer and taking the petitioner in custody at Jaisalmer were not sent.
Thus, according to the learned counsel, the opinion of the Advisory Board cannot be said to have been made after presentation before it of all the relevant facts by the respondents. The learned counsel for the petitioner, in support of his submissions, has referred, apart from the decision in Ram Singh’s case 1993 Indlaw RAJ 20 (supra), the decisions in Additional Secretary to the Government of India & Ors. Vs.Smt.Alka Subhash Gadia & Anr.: 1992 Supp (1) SCC 496 1990 Indlaw SC 636, Abhay Shridhar Ambulkar Vs. S.V.Bhave, Commissioner of Police & Ors.: AIR 1991 SC 397 1990 Indlaw SC 626, and Suram Chand Vs. State of J & K & Ors.: 2006 (1) WLC (SC) Criminal 623 2005 Indlaw SC 1855.
23. Per contra, the learned Additional Advocate General has referred to the reports as made against the petitioner and submitted that when there had been a sizable number of criminal cases against him; and when he had been regularly indulging in boot- legging and varying nature other offences, his activities were those of a habitual offender and were considered prejudicial to the maintenance of public order. The learned Additional Advocate General further submitted that the order of detention was duly placed before the Advisory Board and the Advisory Board also duly considered the matter and as per the advice, the State Government confirmed the detention order as there was no reason not to follow the opinion of the Advisory Board.
The learned Additional Advocate General submitted that the fact has, of course, been admitted on behalf of the respondents that the petitioner was not as such charge-sheeted for an offence under S. 143 IPC but, there had been cases registered for the said offence against him and if in the given investigation, the requisite evidence could not be obtained or collected, that does not take away the overall characteristics referable to the petitioner. The learned Additional Advocate General further submitted that so far the date of detention of the petitioner i.e., 03.01.2012 is concerned, nothing much turns upon this aspect because of the peculiar fact that the petitioner was serving an externment order on 02.01.2012 at Jaisalmer and he was required to be brought to Barmer for the purpose of execution of the detention order dated 02.01.2012. The learned Additional Advocate General submitted that neither any prejudice has been caused to the petitioner in the proceedings whereby he was brought to Barmer and then, was detained nor the proceedings are vitiated for any fundamental illegality.
According to the learned Additional Advocate General, substance of the matter remains that the Activities of the petitioner were considered prejudicial to the maintenance of public order; and that even if the District Magistrate had earlier turned down the request for the order of detention against the petitioner, when he was apprised of the requirements by the responsible authorities and passed the order with reference to the record, no illegality was committed so as to warrant interference.
24. As regard to the notification dated 21.04.2011, the learned Additional Advocate General submitted that this notification, as freshly issued by the Government after the decision of this Court in Anil Nayak’s case (supra), is in accord with the substance of the provisions contained in S. 3 of the Act when specific satisfaction of the Government has been stated about the prevailing circumstances i.e., of anti-social activities in the parts of Barmer District by undesirable elements who were acting prejudicial to the maintenance of public order and, thus, it was found necessary to authorise the District Magistrate, Barmer to exercise the powers under sub-s. (1) of S. 3 of the Act for taking preventive measures in order to curb such activities in an effective manner.
According to the learned Additional Advocate General, mere want of the exact words of the statute in the notification does not take away the substance of the matter.
25. After having given a thoughtful consideration to the rival submissions and having examined the record, we are unable to approve the order of detention of the petitioner as made in this case for more than one reason.
26. However, before dealing with the submissions relating to the facts of the case, appropriate it shall be to consider the submissions as made by the learned counsel for the petitioner on the validity of the notification in question.
27. As noticed hereinbefore, the State Government earlier issued the notification dated 18.08.2008 authorising generally all the District Magistrates to exercise the powers under sub-s. (1) of S. 3 without spelling out the specific circumstance/s in relation to any specific and particular area. Such a notification was not approved by this Court and was quashed. The Government was, however, entitled to issue an appropriate order in writing and hence, issued the notification dated 21.04.2011.
28. We may observe that for conferment of the powers by the State Government on the District Magistrate under sub-s. (2) of Section 3, the satisfaction of the Government on the circumstances prevailing or likely to prevail in any area within the local limits of the jurisdiction of the concerned District Magistrate is a sine qua non without which, there cannot be a valid conferment of powers. Noteworthy it is that in Ram Singh’s case 1993 Indlaw RAJ 20, the notification of authorisation under the analogous provision in the National Security Act was considered invalid for the basic reason that it did not record the satisfaction of the Government, as required by S. 3 of the said Act. In Ram Singh’s case 1993 Indlaw RAJ 20, this Court, of course, found further shortcoming in the notification as issued under the National Security Act when it did not say that the Magistrate could exercise the powers if satisfied as provided under the particular sub-section that dealt with satisfaction of the Government concerned.
However, read as a whole, it is difficult to cull out a ratio from Ram Singh’s case 1993 Indlaw RAJ 20 that only for the reason of want of the expression that the Magistrate could exercise the delegated power after reaching to the satisfaction as required to be reached by the Government, the entire notification be considered invalid.
29. It is noticed that in relation to the Rajasthan Prevention of Anti-Social Activities Act, 2006 with which we are concerned, in the earlier generalised notification dated 18.08.2008, the State Government omitted to state its satisfaction on the circumstances prevailing or likely to prevail in any particular area; and that was the reason for this Court quashing the same in Anil Nayak’s case (supra). However, the notification now issued by the Government on 21.04.2011 does record its satisfaction about the requirement of authorisation of the District Magistrate, Barmer for the circumstances prevailing in the area of his jurisdiction. The notification dated 21.04.2011, of course, does not use the expression that ‘the District Magistrate may exercise the powers conferred by sub-s. (1) upon his satisfaction as provided in sub-section (1)’ but, when the same has been issued under sub- s. (2) of Section 3, it inheres the notification that the District Magistrate, when acting thereunder, could exercise the powers only if he comes to a satisfaction as provided in sub-s. (1) i.e., the satisfaction with respect to any person that his detention was necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.
Thus, we are not persuaded to quash and set aside the notification dated 21.04.2011 altogether only for want of the use of the exact words of the statute. We do not propose to dilate further on the aspect relating to the validity of the notification because in the present case, the District Magistrate has purportedly proceeded to record his satisfaction as required by sub-s. (1) of S. 3 and has not passed the order impugned de hors the satisfaction required by sub-s. (1) ibid. Whether such a satisfaction has been recorded objectively or not shall be considered in the later part of this order but in the totality of circumstances, we find no reason to quash the notification altogether with reference to the observations as made in Ram Singh’s case 1993 Indlaw RAJ 20 (supra).
30. However, so far the fact situation and the merits of the case are concerned, we are clearly of the view that irrespective of the challenge to the notification in question, the detention order as made in relation to the petitioner Hingol Singh cannot be sustained for want of objective consideration.
31. The first and foremost reason for which we feel that the order as passed against the petitioner has not been a result of objective consideration is that in the order impugned itself, the learned District Magistrate observed that in all the cases against the petitioner, the offence under S. 143 IPC was also included; and that was the basis of his conclusion that the petitioner had formed a gang and was thereby spreading terror.
32. We cannot help commenting on the approach of the respondents in this matter particularly when, after preliminary consideration of the writ petition, we provided opportunities, twice over, to the Government to re-examine the matter. Pursuant to our order dated 08.06.2012, the Government purportedly re-examined the matter but came out with the cryptic order dated 18.06.2012, as reproduced hereinabove. The fact that the petitioner was involved in offence under S. 143 IPC was, again, distinctly taken as the basis of justification of the detention order.
Moreover, in the repeat order as passed on 05.07.2012, it was yet reiterated that in one of the case, charge-sheet had been filed against the petitioner for the offence under S. 143 IPC. It appears that even on the basic factual aspect, the learned Additional Advocate General had to advise the authorities concerned properly after examining the record in the third round of consideration of this matter with the learned counsel for the petitioner persisting with the assertion that there had not been a single case in which the petitioner was charge-sheeted for an offence under S. 143 IPC. Only thereafter, the above-quoted affidavit was filed by the concerned Deputy Secretary admitting the mistake.
33. The narration aforesaid makes it absolutely clear that all the facts were not properly projected, whether before the District Magistrate or before the State Government. When such incorrect projection of facts had emanated from the Superintendent of Police and travelled to the District Magistrate and to the State Government, it goes without saying that same facts must have been placed before the Hon’ble Members of the Advisory Board; and the basic and fundamental fact, that has surfaced only in the lately filed affidavit, was not placed before the Hon’ble Members of the Board.
The consideration might have been different, had it been shown that though alleged, in none of the cases, the petitioner was charge-sheeted for offence under S. 143 IPC.
34. Another relevant and significant aspect of the matter cannot be lost sight of that the Superintendent of Police made the proposition for preventive detention of the petitioner firstly on 15.02.2011 but the same was turned down by the District Magistrate on 15.07.2011 after finding no sufficient ground to make the detention order. The Superintendent of Police repeated his request and the same was, again, turned down on 14.10.2011. It sounds rather strange that the Superintendent of Police, though persisted with his request but did not come out with any new set of facts and yet, the District Magistrate, Barmer on the basis of the same facts on which he had already returned the matter twice over, suddenly changed his opinion after a so-called conference with the Superintendent of Police. In our view, the District Magistrate, Barmer was required to form an independent and objective opinion. It was not a matter where some substantial material was brought on record for him to make an opinion different.
35. Moreover, after the first proposition of preventive detention had been declined by the District Magistrate on 15.07.2011, if at all any new opinion was to be formed, there was one more fact that came distinctly on record operating against the proposition of preventive detention of the petitioner; and that was the order dated 29.08.2011, as passed by the Additional District Magistrate, Barmer under S. 3 of the Act of 1975. By the said order, the learned Additional District Magistrate, Barmer ordered extermination of the petitioner to Jaisalmer District for a period of six months; and the petitioner was ordered to be placed under the control and supervision of the Superintendent of Police, Jaisalmer.
36. At the time of third repeat request by the Superintendent of Police for detention of the petitioner, he had already been exterminated to Jaisalmer District; and at the time of passing of the order dated 02.01.2012, the petitioner had been to Jaisalmer for about four months. It has not been shown if during this period the petitioner was, in any manner, acting prejudicial to the maintenance of public order in Barmer District so that the District Magistrate, Barmer would have formed an objective and distinct opinion about the necessity of his detention. As noticed, the additional facts, if any, were only contra the proposition of preventive detention of the petitioner by the District Magistrate, Barmer and not in support.
37. This Court did indicate the aforesaid aspects in the order dated 08.06.2012 (as partly reproduced hereinabove) and expected the Government to apply itself to the record and then, to take an objective decision. We are required to regretfully notice that the opportunities as extended have not been utilised by the Government and on the contrary, the orders dated 18.06.2012 and 05.07.2012 have been passed in a cryptic manner and contrary to the record.
38. In view of what has been discussed above, we have no hesitation in coming to the conclusion that passing of the detention order in the present case on 02.01.2012 against the petitioner has been wanting in objective consideration of the matter and had not been in proper exercise of the powers conferred by the Act. This apart, even the manner of execution of the impugned order has left very many things to be desired. As per S. 4 of the Act, the order of detention can be executed at any place in the State yet, the petitioner who was admittedly in Jaisalmer District on 02.01.2012 was allegedly handed over to the Officers of Police Station, Sadar Barmer at 9:00 p.m. on 02.01.2012 and then, was allegedly shown detained at Barmer from 03.01.2012.
The submissions of the learned counsel for the petitioner cannot be ignored that such creation of record was essentially to avoid coming to the fore the crucial and relevant fact that the petitioner was indeed to Jaisalmer for about four months on the date of passing of order for his detention by the District Magistrate, Barmer i.e., 02.01.2012. From the list of documents, as forwarded by the District Magistrate, it appears that the petitioner’s extermination to Jaisalmer and his being away from Barmer District for 4 months before passing of the order was as such not presented before the State Government. Obviously, the matter was not properly placed before the Advisory Board either.
39. It is to be imbibed that the powers under the Act being of detention without trial, have to be exercised more consciously and on substantial material. In the present case, for what has been discussed above, we are unable to sustain the proceedings for detention of the petitioner. It would have been rather discreet on the part of the Government if the opportunities extended by the orders dated 08.06.2012 and 04.07.2012 were properly utilised and the matter was objectively considered. What to say of objective consideration, even the basic facts were not properly examined, as noticed hereinbefore.
40. Apart from the above, the total circumstances are that since passing of the order dated 29.08.2011, the petitioner had been away and detached from Barmer District for four months. He was in Jaisalmer District and now until this date, he is in preventive detention. In the totality of circumstances, we feel it just and proper that the petitioner ought be set at liberty forthwith, but without prejudice to either of the parties in any other proceedings in future in accordance with law.
41. In view of the above, this writ petition succeeds and is allowed to the extent indicated above. The petitioner-detenue Hingol Singh son of Dhan Singh, who is at present detained in preventive detention, is ordered to be set at liberty forthwith so far the proceedings under the Rajasthan Prevention of Anti-Social Activities Act, 2006 are concerned.
42. It is, however, made clear that this order or any observations herein shall not be of prejudice to either of the parties in any other proceedings in future in accordance with law.
Petition allowed
