Kamal Kishore Tripathi son of Shri Ram Niwas vs State of Rajasthan

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2017 Supreme(Raj) 316

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
MOHAMMAD RAFIQ, DINESH CHANDRA SOMANI, JJ.
Kamal Kishore Tripathi son of Shri Ram Niwas - Petitioner
Versus
The State of Rajasthan – Respondent
D. B. Civil Writ (Habeas Corpus) Petition No. 252 of 2016
Decided on : 07-03-2017

Important Points

Important Point - The detaining authority must provide the detenu a very early opportunity to make a representation and must consider the representation as soon as possible preferably before the representation is forwarded to the Advisory Board.

Subject

Preventive Detention - Rajasthan Prevention of Anti-Social Activities Act, 2006

Act Referred

ARMS ACT : S.4, S.25
CONSERVATION OF FOREIGN EXCHANGE AND PREVENTION OF SMUGGLING ACTIVITIES ACT : S.8(c)
CONSTITUTION OF INDIA : Art.22(4), Art.22(5)
CRIMINAL PROCEDURE CODE : S.110
INDIAN PENAL CODE : S.323, S.336, S.341, S.337, S.279, S.379, S.427, S.325, S.327, S.365, S.392, S.307
NATIONAL SECURITY ACT : S.10
PREVENTIVE DETENTION ACT : S.3(4)
RAJASTHAN PREVENTION OF ANTI SOCIAL ACTIVITIES ACT : S.3(2), S.3(3), S.11, S.2(c), S.3(1)

Headnote

Rajasthan Prevention of Anti-Social Activities Act, 2006 - Section 3(2) - Habeas Corpus Petition filed with the prayer that order passed by the respondents directing preventive detention of the petitioner for a period of one year be quashed and set aside with a further prayer for quashment of the proceedings against the petitioner under the Act of 2006 - Representation of the detenu was pending consideration with Central Government and was not forwarded to Advisory Board - Government rather rejected representation of the detenu during pendency of the proceedings before the Advisory Board - It was held that detention of the detenu is constitutionally invalid and rejection of the representation by Central Government during pendency of proceedings before the Advisory Board was of no consequence to sustain the detention - Rejection of representation by the State Government after it had forwarded the grounds of detention to the Advisory Board and appraisal of the fact of rejection to the Advisory Board by the State Government must be held to have vitiated the proceedings of the Advisory Board as also subsequent confirmation of the detention by the State Government - Order passed by the respondents is quashed and set aside and the respondents are directed to set the petitioner free from detention forthwith.

Result - Present habeas corpus petition deserves to succeed and is accordingly allowed.

Advocates:
Advocate Appeared:
For the Petitioner: Mr. Rajneesh Gupta.
For the Respondent: B.N. Sandu, AAG with Mr. Pankaj Sisodiya, Assistant G.A.

ORDER :

MOHAMMAD RAFIQ, J.

1. This habeas corpus petition has been filed by Kamal Kishore Tripathi through his brother Krishan Murari Tripathi with the prayer that order dated 09.09.2016 passed by the respondents directing preventive detention of the petitioner for a period of one year up to 31.07.2017, 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’).

2. 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 to be held at 4.30 P.M. on 22.08.2016 in the Common Room of the Rajasthan High Court Bench, Jaipur. The Joint Secretary, accordingly, informed the Commissioner of Police, Jaipur and Deputy Commissioner of Police, Jaipur(East) and Superintendent, Central Jail, Jaipur about the date and time of the proposed meeting of the Advisory Board. It appears that subsequently a letter was sent by Private Secretary of the Chairman of the Advisory Board to Joint Secretary to the Government with reference to their letter dated 17.08.2016, wherein request was made for deferring the meeting of the Advisory Board scheduled on 22.08.2016 in view of the elections of Students Union of University of Rajasthan and its Affiliated Colleges, which were scheduled to take place on 24.08.2016. This letter informed that in view of that request, meeting of the Advisory Board has been rescheduled to take place at 4.30 P.M. on 29.08.2016. Joint Secretary to the Government again sent a letter dated 19.08.2016 communicating all concerned about changed schedule of the meeting. The petitioner submitted a detailed representation dated 22.08.2016 against his detention to the Principal Secretary, Department of Home, Government Secretariat, Jaipur, District Magistrate cum Commissioner of Police, Jaipur as well as Advisory Board, a copy whereof has been placed on record as Annexure-2. The Government vide letter dated 24.08.2016 addressed to Commissioner of Police, Jaipur(East) called for his point-wise/para-wise comments on the representation submitted by the petitioner on that day itself because meeting of the Advisory Board was scheduled to take place on 29.08.2016 and representation of the petitioner was to be decided before that meeting. The Commissioner of Police cum Executive Magistrate, Jaipur forwarded his comments to the Government vide letter dated 25.08.2016. The Government vide order dated 26.08.2016 rejected representation of the petitioner and sent communication to that effect to the petitioner. It was thereafter that the Government conveyed to the Chairman of the Advisory Board vide letter dated 26.08.2016 that it has after due deliberations decided to reject representation of the detenu. Copy of the representation, comments received from the Commissioner of Police and order of rejection were forwarded to the Advisory Board, which were considered by the Advisory Board in its meeting held on 29.08.2016, which recommended the Government to confirm preventive detention of the petitioner for