9911796707
TMI Blog2017 (3) TMI 1877X X X X Extracts X X X X X X X X Extracts X X X X ..... be quashed and set aside. Further prayer has been made for quashment of the proceedings against the petitioner under Rajasthan Prevention of Anti-Social Activities Act, 2006(for short 'the Act of 2006'). Facts of the case are that the Executive Magistrate cum Police Commissioner, Jaipur Metropolitan, Jaipur served upon the petitioner a notice dated 01.08.2016 under Section 3(2) of the Act of 2006 along with the grounds of detention containing 347 pages and informed that he could make representation thereagainst to the appropriate Government/Advisory Board/Rajasthan High Court or the Police Commissioner, Jaipur through Superintendent of Central Jail, Jaipur. The State Government vide order dated 09.08.2016 approved the order dated 01.08.2016. It was thereafter that the Joint Secretary to Government Home (DM) Department forwarded the matter to the Chairman of the Advisory Board vide its letter dated 10.08.2016. Private Secretary to the Chairman of the Advisory Board vide letter dated 12.08.2016 communicated to the Joint Secretary to Government, Government of Rajasthan, Home (Gr.IX) Deptt., Government Secretariat, Jaipur that meeting of the Advisory Board has been scheduled ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld on 29.08.2016, which recommended the Government to confirm preventive detention of the petitioner for a period of one year. Copy of the report of the Advisory Board was forwarded to the Joint Secretary to Government, Government of Rajasthan, Home (Gr.IX) Deptt. Government Secretariat, Jaipur vide letter dated 03.09.2016. The Government thereafter vide order dated 09.09.2016 passed the order of approval of preventive detention of the petitioner for a period of one year from 01.08.2016 to 31.07.2017. Mr. Rajneesh Gupta, learned counsel for the petitioner in assailing the order of preventive detention submitted that impugned order dated 09.09.2016 is wholly illegal and unconstitutional. The order is non-speaking because the authorities have failed to apply their mind to the material on record inasmuch as they failed to consider facts and law in their true perspective. Mere fact that the petitioner has got 19 criminal cases registered against him could not be a reason to presume that the petitioner has become menace to the society or that he is acting in a manner, which is prejudicial to maintenance of public order. Most of the alleged offences are of petty nature, being under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner before the Advisory Board as mandated by Section 11 of the Act of 2006 within a period of three weeks. Initially 22.08.2016 was fixed as the date for producing the detenu before the Advisory Board. However, the respondents themselves requested the Advisory Board for change of date, with the result that the 29.08.2016 was fixed as new date of meeting by the Advisory Board. Mandate of Section 11 of the Act of 2006 was, thus, violated and detention of the petitioner became illegal. Mr. Rajneesh Gupta, learned counsel argued that Section 3(3) of the Act of 2006 provides that when any order is made under Section 3(2) by an authorised officer, he shall forthwith report this 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 12 days after the making thereof, unless, in the meantime, it has been approved by the State Government. It is argued that the respondents failed to communicate to the petitioner approval of the initial detention order passed under Section 3(2) of the Act of 2006 dated 01.08.2016. Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner was not served approval order of initial detention under Section 3(2) of the Act of 2006. At the time of initial detention, communication was sent to brother of the petitioner informing him about detention of the petitioner under Section 3(1) and 3(2) of the Act of 2006. The petitioner was informed vide communication dated 17.08.2016 for appearing before Advisory Board on 22.08.2016. He gave his acceptance at the back of that letter, copy whereof has been placed on record. Learned Additional Advocate General referred to specific affidavit of Shri Ashok Chouhan, Assistant Commissioner of Police, Sanganer, Jaipur, East wherein he has stated that Government of Rajasthan vide letter dated 10.08.2016 wrote a letter to the Advisory Board within three weeks of passing order of detention as per provisions of Section 11 of the Act of 2006. Said letter was was received in the office of Advisory Board on 10.08.2016 itself. The Advisory Board proposed to convene its meeting on 22.08.2016 vide letter dated 12.08.2016 sent to the respondents. Since there were elections to Students Union of University of Rajasthan and Other Affiliated Colleges and representation was submitted by brot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffiliated colleges. These averments have remained unrebutted. 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 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. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 11 of the Act of 2006, in this connection, inter alia provides that 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 "detenu" and where the order has been made by an authorised officer, also the report made by such officer under sub-section (3) of Section 3 of the Act of 2006. Section 3(3) of the Act of 2006 inter alia provides that 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. The order made by the authorised officer as referred to sub-section (3) of Section 3 of the Act of 2006 refers to an order of initial detention made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Court vis-a-vis the obligation of the Central Government to forward the pending representation to the Advisory Board for its consideration. In SK Sekawat Vs. The State of West Bengal, (1975) 3 SCC 249, the question which the Supreme Court considered was whether after referring the case regarding petitioner's detention to the Advisory Board, State Government was bound to forward detenu's representation to the Advisory Board even after thirty days from the date of detention. It was held that it is possible that sometimes the representation of the detenu may be received by the State Government after the case of the detenu has been referred to the Advisory Board. In such a case, so long as the representation is received within thirty days from the date of the detention, the State Government would be bound to forward it to the Advisory Board. In Frances Coralie Mullin Vs. W.G. Khambra and Others, (1980) 2 SCC 275, the Supreme Court observed that the detaining authority must provide the detenu a very early opportunity to make a representation; must consider the representation as soon as possible, preferably before the representation is forwarded to the Advisory Board; m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Advisory Board provided the Board has not concluded the proceedings. In both the situations there is no question of consideration of the representation before the receipt of report of the Advisory Board. Nor it could be said that the Government has delayed consideration of the representation, unnecessarily awaiting the report of the Board. It is proper for the Government in such situations to await the report of the Board. If the Board finds no material for detention on the merits and reports accordingly, the Government is bound to revoke the order of detention. Secondly, even if the Board expresses the view that there is sufficient cause for detention, the Government after considering the representation could revoke the detention. The Board has to submit its report within eleven weeks from the date of detention. The Advisory Board may hear the detenu at his request. The Constitution of the Board shows that it consists of eminent persons who are Judges or person qualified to be Judges of The High Court. It is therefore, proper that the Government considers the representation in the aforesaid two situations only after the receipt of the report of the Board. If the represen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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