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2015 DIGILAW 176 (RAJ)

Farida v. State of Rajasthan

2015-01-20

ANUPINDER SINGH GREWAL, GOPAL KRISHAN VYAS

body2015
Hon'ble VYAS, J.—The instant habeas corpus petition has been filed by Farida W/o Naeem Ahmed (detenu) against the order dated 13.8.2014 passed by the District Magistrate, Bikaner for detention of Naeem Ahmed, husband of the petitioner and the order dated 24.8.2014 passed by the Secretary, Department of Home, Government of Rajasthan whereby an order passed by the District Magistrate, Bikaner for one year detention under the provisions of Prevention of Anti Social Activities Act, 2006 (hereinafter referred to as the Act of 2006 for short) was affirmed. 2. As per the facts narrated in the writ petition, the husband of the petitioner Naeem Ahmed was doing the real estate business and due to business competition, the competitors of real estate business developed jealousy and enmity with the petitioner’s husband and with ulterior consideration/motive and to satisfy their desire, they insisted the APP to request the SHO, Police Station Nayashehar, Bikaner for taking action against the petitioner and his associates under the provisions of the Act of 2006. The Superintendent of Police, Bikaner vide communication dated 1.4.2011 requested the District Collector, Bikaner to pass detention order against the husband of the petitioner and in turn vide communication dated 7.4.2011 sent a communication dated 7.4.2011 to the State Govt. for further proceeding. It is alleged by the petitioner in the writ petition that without independently satisfying itself as required under the provisions of the Act of 2006, the State Government mechanically and without application of mind delegated the powers to the District Collector, Bikaner vide notification dated 3.5.2011 to take action under Sec. 3(1) of the Act of 2006 against the husband of the petitioner. The District Collector, Bikaner passed an order dated 11.7.2011 against the husband of the petitioner and in pursuance of the said detention order, Naeem Ahmed the husband of the petitioner was detained on 12.7.2011 and after his detention, the District Magistrate, Bikaner sent communication dated 14.7.2011 to the State Government with request to grant approval. 3. As per the petitioner the order dated 11.7.2011 was defective because there is no power under Section 1 of the Act of 2006 to detain a person, therefore, the State Government vide communication dated 19.7.2011 issued direction to the District Collector, Bikaner to withdraw the order dated 11.7.2011 and initiate fresh proceedings. 4. The District Magistrate, Bikaner passed an order on 19.7.2011 whereby the order of detention dated 11.7.2011 was withdrawn. 4. The District Magistrate, Bikaner passed an order on 19.7.2011 whereby the order of detention dated 11.7.2011 was withdrawn. 5. The Superintendent of Police, Bikaner vide communication dated 27.1.2012 again made a request to the District Magistrate, Bikaner for passing detention order against the husband of the petitioner Naeem Ahmed and while exercising power under sub-section (1) of Section 3 of the Act, 2006, the District Magistrate, Bikaner issued detention order on 27.3.2012. Against the order dated 27.3.2012, a writ petition was preferred on behalf of the petitioner’s husband by the second wife Sabina Khan. The said writ petition was registered as D.B. Habeas Corpus Petition No.9919/2012 in which the Division Bench of this Court quashed the detention order dated 27.3.2012 vide judgment dated 26.9.2012. 6. For near about 2 years no action was taken by the respondent-State to pass any order for detention but all of sudden again detention order was issued on 14.8.2014 by the District Magistrate, Bikaner while exercising power under the provisions of the Act of 2006. Thereafter, the case was forwarded to the State Government for approval and the State Government vide order dated 24.8.2014 affirmed the order of detention. 7. In this habeas corpus petition filed by the second wife of Naeem Ahmed (detenu) the petitioner is challenging the validity of order dated 13.8.2014 passed by the District Magistrate, Bikaner and the order of affirmation passed by the dated on 24.8.2014. 8. The learned counsel for the petitioner vehemently argued that the order of detention of the petitioner’s husband is totally in contravention of the Act, so also, it has been passed on illegal grounds, that too, without application of mind, therefore, the order impugned deserve to be quashed . 9. The learned counsel for the petitioner vehemently argued that there is no justified and trustworthy material on record to prove the fact that detention order has been passed after due application of mind. More so, when first detention order was issued on 11.7.2011 it was not approved by the State Government and same was withdrawn by the District Collector, Bikaner himself on 19.7.2011, the husband of the petitioner remained in custody without any reason w.e.f. 12.7.2011 to 19.7.2011. More so, when first detention order was issued on 11.7.2011 it was not approved by the State Government and same was withdrawn by the District Collector, Bikaner himself on 19.7.2011, the husband of the petitioner remained in custody without any reason w.e.f. 12.7.2011 to 19.7.2011. The District Magistrate, Bikaner again passed an order for detention of petitioner’s husband on 27.3.2012 and sent for approval to the Government and Government approved the same on 28.3.2012 but first wife of Naeem Ahmed Smt. Sabina Khan filed D.B. Habeas Corpus Petition No.9919/2012 to challenge the order of detention in which the Division Bench of this Court set aside the order because order was totally without jurisdiction. 10. After quashing the order of detention vide judgment dated 26.9.2012 in aforesaid writ petition, no new facts took place against the petitioner, but the District Magistrate, Bikaner again passed an order for detention of Naeem Ahmed on 13.8.2014 under the provisions of the Act of 2006 and forwarded the same to the State Government for approval and the State Government approved the same on 24.8.2014, but the fact remains that after quashing the order of second detention by this Court on 26.9.2012, two cases were registered against the detenue Naeem Ahmed, out of which in one case, the detenu Naeem Ahmed has been acquitted. It is argued that even if order of detention is justified, then also, as per proviso to Section 15, the respondent- State is required to calculate the entire period in which detenu remained in detention earlier for the purpose of one year detention, therefore the order of detention for one year is against the spirit of proviso to Section 15 of the Act, that too, without application of mind because there was not material change after quashing the earlier order of detention by this Court, therefore, the order of detention which is subsequently approved by the State Government on 24.8.2014 may be quashed. 11. 11. Per contra, the learned counsel appearing for the State vehemently opposed the prayer and submits that the impugned detention order was passed by the District Magistrate, Bikaner while exercising power conferred under Section 3 of the Act of 2006 on 13.8.2014 and in furtherance thereof, the matter was sent to the Government for its approval under Section 3(3) of the Act of 2006 and State Government after due application of mind and recording satisfaction granted approval for detention order. Thereafter, the matter was placed before the Advisory Board in which the detenu Naeem Ahmed was granted opportunity of hearing and vide order dated 10.9.2014 the Advisory Board give its report that there are sufficient cause for detention of Naeem Ahmed, therefore, the Advisory Board confirmed the order of detention for the maximum period given under the Act of 2006. 12. The learned Public Prosecutor vehemently submits that intentionally the petitioner did not submit the copy of the report of the Advisory Board before this Court and straightway filed this writ petition without challenging the order of the Advisory Board, therefore, this writ petition may be dismissed. 13. After hearing the learned counsel for the parties, we have considered the entire material on record. 14. Upon perusal of entire record, it emerges from the facts that first detention order was passed on 11.7.2011 against Naeem Ahmed and in pursuance of that Naeem Ahmed was detained on 12.7.2011. The said detention order was for one year. 15. Admittedly, the order of detention was withdrawn by the District Collector, Bikaner on 19.7.2011 because the State Government refused to approve the said order. The detenu Naeem Ahmed released on 19.7.2011 but gain the District Magistrate, Bikaner passed an order on 27.3.2012 whereby the husband of the petitioner Naeem Ahmed was detained for one year on the ground that 29 criminal cases were registered against him. The order of detention dated 22.3.2012 was approved by the State Government vide order dated 5.4.2012 but both these orders were challenged by second wife of Naeem Ahmed Smt. Sabina Khan by way of filing DB Habeas Corpus Petition No.9919/2012 in which the Division Bench of this Court after considering all the facts, set aside the order of detention dated 27.3.2012 passed by the District Magistrate, Bikaner. The operative part of the judgment of the Division Bench dated 26.9.2012 is as under: - “The controversy involved in this petition for writ as a matter of fact is squarely covered by the law laid down in the case aforesaid. Accor-dingly, this habeas corpus petition is allowed. The Notification dated 3.5.2011 read with notification dated 3.2.2012 are hereby declared illegal and therefore, the same are quashed. The order of detention dated 27.3.2012 passed by the District Magistrate is also quashed. The respondents are directed to release the petitioner forthwith if not required to be detained in connection with any other case.” 16. It appears from the fact that in pursuance of the detention order dated 27.3.2012 Naeem Ahmed (detnu) was taken into custody but ultimately vide judgment dated 26.9.2012 he was released because the coordinate bench of this Court set aside the order of detention and during that period, the detnu Naeem Ahmed remained in custody for 6 months. 17. After the judgment passed in the DB Habeas Corpus Petition No.9919/2012 : Sabina Khan vs. State of Rajasthan & Ors. dated 26.9.2012 no action was taken by the State Government for 2 years but after nearabout 2 years on 13.8.2014, the District Magistrate, Bikaner again passed an order for detention while taking into consideration the fact that 29 cases were registered against Naeem Ahmed and after passing the aforesaid order, the matter was forwarded to the State Government and in turn the State Government approved the order of detention passed by the District Magistrate vide order dated 24.8.2014. Both the above orders were considered by the Advisory Board and Advisory Board passed an order on 10.9.2014 in which the following opinion was given by the Advisory Board, which reads as under:- “We are convinced that the District Magistrate has exercised her powers as per Section 3 of the Act of 2006 and the same has been approved by the Government under Section 3(3) of the Act of 2006. The detenu falls within he definition of ‘dangerous person’ and after considering even the definition of ‘habitual’, we find that he has committed offences under the provisions of IPC and those offences are punishable under Chapter XVI or Chapter XVII of the Indian Penal Code of 1860 part from other Acts. The detenu falls within he definition of ‘dangerous person’ and after considering even the definition of ‘habitual’, we find that he has committed offences under the provisions of IPC and those offences are punishable under Chapter XVI or Chapter XVII of the Indian Penal Code of 1860 part from other Acts. The detention order has been passed in those circumstances, however, competent authority is expected to maintain correct status of the cases whether there are pending trail or resulted in acquittal. In the background aforesaid, we are of the opinion that there exists sufficient cause for detention of Naeem S/o yasin Khan, accordingly, we confirm the order of detention for the maximum period given under the Act of 2006. The report may accordingly be sent to the Government as per Section 12(1) of the Act of 2006.” 18. After perusing the order of Advisory Board, we are of the opinion that the action taken by the District Magistrate, Bikaner for detention of petitioner does not suffer from any illegality but at the same time, we have perused the Section 15 of the Act of 2006, which reads as under:- “Sec. 15. Revocation of detention orders.-(1) Without prejudice to the provisions of Sec.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 Govt., not-withstanding that the order has been made by an authorized officer. (2) The expiry or revocation of a detention order (hereinafter in this subsection 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.” (emphasis supplied) 19. Upon perusal of proviso to Section 15 it appears that Legislature has purposely 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. 20. We have considered the matter in the light of the aforesaid proviso. Upon consideration of fact that under first order of detention issued by the District Magistrate, Bikaner, the detenu Naeem Ahmed remained in detention w.e.f. 12.7.2011 to 19.7.2011, thereafter, the second detention order for one was passed by the District Magistrate, Bikaner on 27.3.2012, but that order was set aside by this Court vide judgment dated 26.9.2012 passed in DB Habeas Corpus Petition NO.9919/2012. Till date 27 cases were reported against the husband of the petitioner upon which the action was taken but this court set aside the said order. 21. The aforesaid facts clearly reveal that detenu Naeem Ahmed remained in detention for 6 months w.e.f. 27.3.2012 to 26.9.2012. Thereafter, in two years, two cases bearing FIR Nos.289/2013 and 25/2013 were registered against the detenu Naeem Ahmed, out of which, in one caste he acquitted from the charges leveled against him in FIR no.289/2013. The second case was registered under Section 498A upon the complaint made by his first wife Sabina Khan, which is pending. 22. We have perused the order of detention impugned in this writ petition dated 13.8.2013. In this order again the District Magistrate, Bikaner considered the fact of registration of 29 cases against the husband of the petitioner including 2 cases which were not in existence prior to passing the second detention order against the detune Naeem Ahmed. Meaning thereby, no fresh facts arises to disturb the public order after quashing the second detention order by this Court on 26.9.2012, but the District Magistrate, Bikaner considered the entire material, which were in existence prior to passing of second detention order on 27.3.2012. 23. Meaning thereby, no fresh facts arises to disturb the public order after quashing the second detention order by this Court on 26.9.2012, but the District Magistrate, Bikaner considered the entire material, which were in existence prior to passing of second detention order on 27.3.2012. 23. In view of the above, after perusing the order of Advisory Board, we are of the opinion that there is no illegality in the order of detention, which is examined by the Advisory Board, but we are of the clear opinion that the period of detention is required to be counted right from the first detention order and time period of detention w.e.f. 12.7.2011 to 19.7.2011 and from 27.3.2012 to 26.9.2012 is required to be calculated for the purpose of one year detention as per proviso to Section 15 of the Act of 2006. 24. Consequently, while upholding the order of detention it is ordered that for counting the period of one year detention the period of earlier detention w.e.f. 12.7.2011 to 19.7.2011 and from 27.3.2012 to 26.9.2012 shall be calculated for the purpose of one year detention and after calculating the entire period if the total period comes to one year, then the detenu Naeem Ahmed may be released on completion of total period of one year. 25. Accordingly, this habeas corpus petition is hereby disposed of in above terms.