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2012 DIGILAW 1861 (RAJ)

Shoaib Khan v. State of Rajasthan

2012-08-30

GOVIND MATHUR, R.S.CHAUHAN

body2012
JUDGMENT 1. - This petition for writ is preferred to challenge the order dated 2.1.2012 passed by the District Magistrate, Chittorgarh, exercising powers under Section 3(1) of the Rajasthan Prevention of Antisocial Activities Act, 2006 (hereinafter referred to as "the Act of 2006") for detention of Firoz Khan son of Deran Khan. 2. At the threshold it is submitted by counsel for the petitioner that the controversy involved in this petition for writ is no more res integra in view of the judgment dated 27.8.2012 passed by this Court in batch of writ petitions led by D.B. Civil Writ (Habeas Corpus) Petition No. 6123/2012, Kishan Singh v. State of Rajasthan & Anr.) According to learned counsel in the instant matter too the notification issued by the State Government exercising powers under Section 3(2) of the Act of 2006 is not an outcome of the satisfaction arrived by examining circumstances prevailing or likely to prevail within the area and local limits of the District Magistrate, Chittorgarh. It is asserted that as a matter of fact no material was available with the State Government to arrive at the conclusion that the public order in District Chittorgarh was so disturbing that the delegation of powers by exercising powers under Section 3(1) of the Act of 2006 was necessary. 3. We have examined the original record on basis of which the State Government relied while delegating the powers to the District Magistrate, Chittorgarh as per the provisions of Section 3(2) of the Act of 2006. From perusal of the entire record it reveals that at the first instance the Collector, Chittorgarh reported certain acts of Shri Manoharlal son of Shri Shambhulal Jat and Kishanlal son of Shri Mahrulal Jat and on basis of that claimed for delegation of powers as available to the State Government under Section 3(1) of the Act of 2006. Al the material remitted by the Collector, Chittorgarh was placed before the Assistant Legal Remembrance, who after considering the same arrived at the conclusion that no circumstance exits for making any delegation of powers by exercising the authority conferred by Section 3(2) of the Act of 2006. Al the material remitted by the Collector, Chittorgarh was placed before the Assistant Legal Remembrance, who after considering the same arrived at the conclusion that no circumstance exits for making any delegation of powers by exercising the authority conferred by Section 3(2) of the Act of 2006. The opinion given by the Assistant Legal Remembrance was placed before the Secretary to the Government of Rajasthan (Home Affairs), who disagreeing with the opinion of the Assistant Legal Remembrance, made the following note: "While Collector Chittorgarh has sent a single case as on date, both S.P. and D.M. have assured me that there are a number of such cases pending. Chittorgarh has also a large area under poppy cultivation and drug related offences have repeatedly taken place. Given these circumstances there is good reason to be satisfied that these powers are required for maintenance of public order. Pl. process for delegation of powers." 4. The matter then was further placed before the higher executive authorities who just by putting signatures approved the recommendation made by the Secretary. From perusal of the entire record it reveals that the Assistant Legal Remembrance, as a matter of fact after considering all circumstances objectively arrived at the conclusion that no material was available to say that the circumstances are prevailing or illegally to prevail those may effect the public order adversely in District Chittorgarh. The Secretary to the Government of Rajasthan instead of relying upon the well reasoned legal opinion given by the Assistant Legal Remembrance chose to act upon some assurance made by the Collector and the Superintendent of Police, Chittorgarh and a general opinion about the drug related offences in District Chittogarh, being a poppy cultivating region. If the officer concerned was having some general opinion about the position of public order in the area concerned, then he should have based that on concrete facts, but unfortunately no such effort was made. From perusal of the noting quoted above, it is apparent that no material at all was taken into consideration by a competent officer of the State Government to arrive at the conclusion that delegation of power was necessary for maintenance of public order. Mere statement given by the Collector and the Superintendent of Police Chittorgarh could not have been accepted and prevailed over a detailed objective opinion given by the Assistant Legal Remembrance. Mere statement given by the Collector and the Superintendent of Police Chittorgarh could not have been accepted and prevailed over a detailed objective opinion given by the Assistant Legal Remembrance. If the State Government was of the view that the opinion given by the Assistant Legal Remembrance was not correct, then it should have considered the entire material available for making a definite opinion and further to satisfy itself that the circumstances prevailing or likely to prevail in Chittorgarh District are adversely effecting public order to the extent of demanding the delegations of powers available to the State Government by exercising power under Section 3(2) of the Act of 2006. The entire record clearly depicts absolute non-application of mind and, therefore, we are having no hesitation in arriving at the conclusion that delegation of powers made in favour of the District Magistrate, Chittorgarh by the State Government under the notification dated 12.10.2011 is not is consonance with the requirement of Section 3(2) of the Act of 2006 and for the reasons given in the case of Kishan Singh (supra), this petition for writ deserves acceptance.Accordingly, this petition for writ deserves acceptance. Hence, the same is allowed. The Government of Rajasthan notification dated 12.10.2011 bearing Nos. P. 36 (12) Grah-9/2011 is hereby declared illegal and, therefore, the same is quashed. The order of detention dated 2.1.2012, passed by the District Magistrate, Chittorgarh is also declared illegal and, therefore, the same too is quashed. All the orders consequential thereto are also quashed. The detenu Fixoi Khan son of Deran Khan detained under the orders aforesaid by released forthwith, if not required to be detained in connection with any other owePetition allowed. *******