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2023 DIGILAW 2147 (RAJ)

Kalawati W/o Ashok Kumar v. State of Rajasthan

2023-11-24

ARUN BHANSALI, NUPUR BHATI

body2023
JUDGMENT : 1. This writ petition has been filed by the petitioner, mother of detenue-Hariom Ramawat, aggrieved of the order dated 25.07.2023 (Annex-1), whereby he has been ordered to be detained under the provisions of Rajasthan Preventive of Anti- Social Activities Act, 2006 (‘Act’) and the order dated 13.09.2023 (Annex-5), wherein based on the opinion of the Advisory Board, order under Section 13 (1) of the Act, has been passed placing the detenue under preventive detention for a period of one year i.e. till 25.07.2024. 2. It is, inter-alia, indicated in the petition that the detenue was ordered to be released on bail on 21.07.2023, however, he was not freed and kept under detention. Whereafter, on 25.07.2023 the District Magistrate, Bikaner passed the order of detention based on a complaint dated 23.07.2023 made by the Superintendent of Police, Bikaner, under provisions of the Act. 3. On 26.07.2023, the detention of the son of the petitioner was shown in records and the order dated 25.07.2023 was served on the detenue. 4. Qua the detention, the petitioner (mother of detenue) made a representation dated 02.08.2023 and on 03.08.2023 (Annex-3), an order under Section 3 (3) of the Act was passed approving the order of detention dated 25.07.2023. Whereafter, the petitioner was required to appear before the Advisory Board and on approval by the Advisory Board, order dated 13.09.2023 (Annex-5) was passed under Section 13 (1) of the Act ordering for preventive detention of the detenue till 25.07.2024. 5. Submissions have been made that the respondents have failed to provide adequate opportunity to make representation and failure to provide the opportunity, as envisaged under the Act, vitiates the order of preventive detention. It is submitted that the order of detention was served on the petitioner on 26.07.2023 and the covering letter (Annex.R/5) does not even indicate any period, within which the petitioner could make a representation. The order under Section 3 (3) of the Act came to be passed on 03.08.2023, whereas such approval could be granted within the period of 12 days and, as such, the detenue has been deprived of the opportunity to make a representation. Further submissions have been made that on account of passing of the order on 03.08.2023, the representation made by the petitioner-mother dated 02.08.2023 (Annex-2) also has not been taken into consideration and, therefore, the order of detention stands vitiated. Further submissions have been made that on account of passing of the order on 03.08.2023, the representation made by the petitioner-mother dated 02.08.2023 (Annex-2) also has not been taken into consideration and, therefore, the order of detention stands vitiated. Reliance have been placed on Mangi Kumari vs. State of Rajsathan and Others, DB Habeas Corpus Petition No. 3/2023 decided on 25.05.2023. 6. Learned Additional Advocate General made submissions that from the material available on record i.e. the grounds of detention as well as the order passed by the Advisory Board clearly reflects that detenue is a dangerous person, as defined under the provisions of the Act and that though he was provided opportunity to make a representation vide Annex.R/5, he failed to make any representation and as such, no plea based on the purported failure to provide opportunity can be countenanced. Submissions have been made that all the provisions, as contained in the Act, have been scrupulously followed by the respondents, which aspect has been noticed by the Advisory Board while approving order of detention and, therefore, the order impugned does not call for any interference. 7. We have considered the submissions made by learned counsel for the parties and have perused the material available on record. 8. The covering letter sent to the detenue along with the order of detention and the grounds thereof, inter-alia, reads as under: ^^mi;qZDr fo"k;kUrxZr bl dk;kZy; ds vkns'k Øekad lhch@U;k;@jktiklk@2023@6034&603 fnukad 25-07-2023 ds }kjk jktLFkku lekt&fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 dh /kkjk 3 ds rgr fu:) fd;k tkdj dsUæh; dkjkx`g] chdkusj esa j[kk x;k gSA vkidks fu:) fd;s tkus ds vkns'k dh Áfr ,oa vk/kkj ,oa lacaf/kr nLrkostksa dh QksVksÁfr bl i= ds lkFk Ásf"kr fd, tk jgsA vki vxj pkgs rks fu:) fd;s tkus ds vkns'k ds fo:) viuk vH;kosnu jkT; ljdkj dks ÁLrqr dj ldrs gSA layXu & vkns'k] vk/kkj ,oa layXu nLrkostksa dh Nk;kÁfrA** 9. A perusal of the above would reveal that no time limit has been fixed for making the representation. The provisions of Section 3 (3) of the Act provides for approval within a period of 12 days after the person has been detained. 10. It is not denied that the representation (Annex-2) was made by the petitioner, mother of the detenue, however, it is indicated that the same was received on 04.08.2023. 11. The provisions of Section 3 (3) of the Act provides for approval within a period of 12 days after the person has been detained. 10. It is not denied that the representation (Annex-2) was made by the petitioner, mother of the detenue, however, it is indicated that the same was received on 04.08.2023. 11. The order passed by the respondents under Section 3 (3) of the Act granting approval, inter-alia, reads as under: ^^Øekad% iŒ36 ¼15½ x`g&9@2023 t;iqj] fnukad% 03-08-2023 vkns'k ftyk eftLVsªV] chdkusj }kjk jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 ¼2008 dk vf/kfu;e la[;k&1½ dh /kkjk 3 dh mi/kkjk ¼1½ ds v/khu gfjvkse jkekor iq= Jh v'kksd dqekj mez 26 lky] tkfr lk/k] fuoklh okMZ uEcj 11 dksyk;r] ih,l dksyk;r gky xksis'oj cLrh iqfyl Fkkuk xaxk'kgj] chdkusj ds fo:) fu:f) vkns'k Øekad 6034 fnukad 25-07-2023 ikfjr fd;k x;k gSA jkT; ljdkj dk lek/kku gks x;k gS fd gfjvkse jkekor iq= Jh v'kksd dqekj mez 26 lky] tkfr lk/k] fuoklh okMZ uEcj 11 dksyk;r] ih,l dksyk;r gky xksis'oj cLrh iqfyl Fkkuk xaxk'kgj] chdkusj ds fo:) fu:f) vkns'k ikfjr djus ds fy, i;kZIr vk/kkj gSA vr% jkT; ljdkj }kjk jktLFkku lekt fojks/kh fØ;kdyki fuokj.k vf/kfu;e] 2006 ¼2008 dk vf/kfu;e la[;k&1½ dh /kkjk 3 dh mi/kkjk ¼3½ ds vUrxZr ftyk eftLVsªV] chdkusj }kjk ikfjr fd;s x;s vkns'k fnukad 25-07-2023 dk vuqeksnu fd;k tkrk gSA jkT;iky dh vkKk ls] ,lMh@& ¼lhek dqekj½ la;qDr 'kklu lfpoA** 12. A perusal of the order passed would reveal that there is no reference to the fact as to whether a representation has been made/has not been made by the detenue and the same has been passed on 03.08.2023 approving the order of detention dated 25.07.2023. 13. This Court in the case of Mangi Kumari (supra) while dealing with a similar nature plea regarding the lack of adequate opportunity resulting in the order of detention getting vitiated, inter-alia, came to the following conclusion: “35. As noticed herein-before, the provisions of Section 3(3) of the Act requires approval of the order passed under Section 3(2) of the Act by an authorised officer by the State Government within twelve days of making of the said order and as noticed Section 9(1) of the Act requires providing of an opportunity to the detenue to make a representation against the order to the State Government. 36. 36. A perusal of the above order dated 21.07.2022 would reveal that the same has been passed within eight days of passing of the order of detention dated 13.07.2022. The order nowhere indicates that the authority passing the order was even aware of the right of the detenue to make a representation, inasmuch as, there is no reference worth the name in the above order regarding the fact of providing an opportunity to the detenue to make a representation under Section 9(1) of the Act and that the detenue had not made any representation. The aspect of passing the order within eight days, though the same could have been made within twelve days also assumes significance in a case where no time limit in the communication was indicated and no representation has been made, inasmuch as, no time limit is fixed under the provisions of Section 9(1) of the Act to make a representation and therefore, the same could have been made within twelve days of passing of the order of detention and the authority was required to consider the said representation before approving the said order of detention. 37. Things would be different where the representation has been made by the detenue, then taking the same into consideration the order could be passed any time within the said period of twelve days, however, where no representation is made, the authority is required to wait and/or notice in its order that the detenue refused to make any representation, else the authority granting approval under Section 3(3) of the Act can very well pass the order within no time of passing of the order of detention, negating the very opportunity to the detenue to make a representation. 38. The very fact that the authority passing the order dated 21.07.2022 has not even noticed the requirement/grant of opportunity to the detenue and that no such representation has been made, clearly shows that the order dated 21.07.2022 (Annex.A/2) has been mechanically passed by the said authority oblivious of the requirements of provisions of Section 9(1) of the Act and as such, the order stands vitiated.” 14. In the present case also, apparently the order has been passed granting approval in mechanical manner without even noticing the requirement of making of a representation and without waiting for adequate period as the order could have been passed in 12 days, whereas the same was passed on 8th day. The above aspect assumes significance on account of the fact that representation by the petitioner, mother of the detenue, was made on 02.08.2023, which was admittedly received on 04.08.2023 and in case the authority had passed the order a day after the passing of the order impugned, which period was available in terms of provisions of Section 3 (3) of the Act, the said representation could have been taken into consideration. 15. The Hon’ble Supreme Court in the case of Rajendrakumar Natvarlal Shah vs. State of Gujarat and Others, (1988) 3 SCC 153 has, inter-alia, laid down as under: “It has always been the view of this Court that detention of individuals without trial for any length of time, however short, is wholly inconsistent with the basic ideas of our Government and the gravity of the evil to the community resulting from anti-social activities can never furnish an adequate reason for invading the personal liberty of the citizen except in accordance with the procedure established by law. The Court has therefore in a series of decisions forged certain procedural safeguards in the case of preventive detention of citizens. When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Article 22 (5) are strictly observed. When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by Article 22 (5) as construed by this Court. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by Article 22 (5) as construed by this Court. Thus, this Court in Khudiram Das vs. State of West Bengal, speaking through Bhagwati, J. observed [SCC p. 87: SCC (Cri.) p. 441, Para 5]: The constitutional imperatives enacted in this article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which the order of detention has been made. (2) the detaining authority must afford the detenu the earliest opportunity of making a representation against the order of detention. These are the barest minimum safeguards which must be observed before an executive authority can be permitted to preventively detain a person and thereby drown his right of personal liberty in the name of public good and social security. As observed by this Court in Narendra Purshotam Umrao vs. B.B. Gujral, when the liberty of the subject is involved, whether it is under the Preventive Detention Act or the Maintenance of Internal Security Act or the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act or any other law providing for preventive detention. [SCC p. 642: SCC (Cri.) p. 562, Para 17] ........it is the bounden duty of the Court to satisfy itself that all the safeguards provided by the law have been scrupulously observed and that the subject is not deprived of his personal liberty otherwise than in accordance with law.” 16. The Hon’ble Supreme Court has repeatedly emphasized that in case of preventive detention, the authorities are required to comply with the provisions in the most scrupulous manner and failure to comply with any of the requirements, would vitiate the order of detention. 17. In view of the above discussion, the writ petition is allowed. The order dated 25.07.2023 (Annex-1) placing the son of the petitioner under preventive detention and the order dated 13.09.2023 (Annex-5) ordering for detention for a period of one year till 25.07.2024 are quashed and set-aside. Detenue, Hariom Ramawat is ordered to be set at liberty forthwith, if not required in any other case. No order as to costs.