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Judgment
In this habeas corpus writ petition, the detenu Salman Khan
has prayed for quashing order dated 15.9.20016 passed by the
District Magistrate, Bikaner whereby while exercising powers
conferred under sub-Section (1) of Section 3 of the Rajathan
Prevention of Anti-Social Activities Act, 2006 (hereinafter referred
to as the Act of 2006 for short), the District Magistrate, Bikaner
passed detention order against the petitioner. A notice was also
given to the petitioner dentue that if you want to file any
representation, you may file because detention order will be
placed before the advisory board by the Government. The
petitioner also challenged the order dated 23.9.2016 passed by
the Home Department, Government of Rajasthan whereby the
order of detention passed by the District Magistrate was approved,
so also, the order dated 3.11.2016 passed by the Home
Department, Government of Rajasthan whereby after confirmation
of detention order by the advisory board on 19.10.2016, the order
dated 3.11.2016 was passed whereby order for detention of
petitioner Salman Khan for one year w.e.f. 23.9.2016 to
22.11.2017 has been passed.
As per facts of the case, the petitioner Salman Khan is 21
years old student, residing in Bhutto Ka Bas, Bikaner. The SHO,
Police Station Sadar, Bikaner submitted a complaint against him
on 18.9.2015 before the Superintendent of Police, Bikaner under
Section 3(1) of the Act of 2006 alleging therein that detenu is
involved in criminal activities from last many years and number of
criminal cases are registered against him in which he is facing
trial, therefore, action may be taken against him under the Act of
2006 because he is become "dangerous person".
Upon above complaint, the Superintendent of Police, Bikaner
made recommendation to the District Magistrate, Bikaner against
the petitioner detenu to take action against him under the Act of
2006 to maintain public order.
The respondent no.3 after considering the material made
available by the Superintendent of Police, Bikaner with regard to
the criminal activities of the petitioner passed an order on
15.9.2016 to detain him while observing in the order that to
maintain public order it is felt necessary to detain Salman Khan
under the provision of the Act of 2006.
The petitioner was arrested and detained in the Central Jail,
Bikaner. After taking him in custody an opportunity was granted
to file representation against the detention order.
In the complaint recommended by the Superintendent of
Police, Bikaner to the District Magistrate, Bikaner details of 16
cases registered against petitioner were brought to the notice of
the District Magistrate to take action under the Act of 2006 for
detention.
The petitioner detenue filed his representation against the
detention order. The said representation was placed before the
advisory board on 19.10.2016. The petitioner also appeared
before the advisory board and submit that in none of the cases, he
has been convicted by any court, so also, in some of the cases
registered against me from 1993 to Feb., 2015, he has been
acquitted after compromise and in one case registered against him
under Sections 323, 341, 347 and 34 IPC, after trial acquitted
from the charges levelled against him, therefore, upon
assessment of entire record submitted by the Superintendent of
Police, Bikaner it is not a case in which he be treated as
"dangerous person" as defined under the Act of 2006. The learned
Advisory Board gave its opinion that there exists sufficient
material to justify the detention order passed against the detenue,
therefore, order of detention is hereby confirmed.
In pursuance of aforesaid confirmation by the advisory
board, State Government issued detention order dated 3.11.2016
to detain the petitioner Salman for one year w.e.f. 23.9.2016 to
22.11.2017.
Learned counsel for the petitioner vehemently argued that a
complaint was filed by the SHO Police Station Sadar, Bikaner on
18.9.2015 before the Superintendent of Police, Bikaner. The
Superintendent of Police Bikaner recommended the case of
petitioner to the District Magistrate, Bikaner vide communication
dated 28.9.2015, alongwith details of 16 cases registered against
the petitioner, upon that recommendation after one year, District
Collector, Bikaner exercised its power under Section 3 of the Act
of 2006 and passed the order of detention against the petitioner
on 15.9.2016. Admittedly, in between 15.9.2015 to 15.9.2016 no
case was registered against the petitioner in spite of that District
Collector, Bikaner passed an order for detention of one year.
Learned counsel for the petitioner argued that detention
order has been passed by the District Collector, Bikaner in very
casual manner, that too, without applying its mind, upon the fact
that out of 16 cases in none of the case, the petitioner has been
convicted. More so, out of 16 cases, in three cases, he was
acquitted on compromise and after trial by the competent trial
court. Therefore, the day on which detention order was passed,
only 13 cases were pending against the petitioner and upon
perusal of list of the cases it will reveal that most of the cases
registered against the petitioner are for the bailable offence and
only one case was registered under Section 307 IPC, that too, in
the year 2014, some of the cases were registered under Section
4 / 25 of the Arms Act, in which petitioner is facing trial, therefore,
on the basis of material placed before the District Magistrate,
Bikaner it cannot be said that petitioner falls under the definition
of "dangerous person" as provided under Section 2(c) of the Act of
2006 so as to take action against him for detention.
The learned counsel for the petitioner submits that it is a
question of liberty of citizen. It is true that right from the year
2009 to 2015 although 16 cases were registered against the
petitioner but in most of the cases are registered for bailable
offences under Section 323, 324 and 341 IPC. Therefore, the
order of detention is not only illegal but also contrary to spirit of
the Act because petitioner does not fall under the definition of
"dangerous person" nor he can be treated "habitual offender" so
as to invoke the provision of the Act of 2006.
According to learned counsel for the petitioner, the order of
detention has been passed by the District Magistrate has been
approved by the State Government and confirmed by the advisory
board in very casual manner, that too, without application of
mind, so also without taking into consideration the whole intention
of the Act of 2006, therefore, the detention order may kindly be
quashed and set aside. In support of his arguments, the learned
counsel for the petitioner invited our attention towards the
judgments of the Division Bench of this court in the case of (i)
Ajay Rinwa Vs. State (DB Habeas Corpus Writ Petition
No.143/2016), decided on 19.9.2016, (ii) Swaroop Ram Vs. State
of Rajasthan & ors, (DB Habeas Corpus Writ Petition No.53/2015),
decided on 4.2.2016 and (iii) Aarab Khan Vs. State of Rajasthan &
ors (D.B. Habeas Corpus Writ Petition No.69/2016), decided on
1.8.2016.
In the reply filed by the respondent-State it is submitted that
detenue Salman Khan engaged in criminal activities continuously
and caused eminent danger to the public order, therefore, due to
his criminal activities, history-sheet has been proposed to be
opened. The people victimized due to his criminal activities time
to time lodged cases against him, but petitioner did not stop his
criminal activities prejudicial to the public order. It is also argued
that the petitioner keeps deadly arms and ammunition, so also
engaged in getting the lands vacated on consideration right from
the year 2009 to 2016 which is evident from the fact that 16 cases
were registered against him, therefore, upon complaint made by
Superintendent of Police, Bikaner it is felt necessary by the District
Magistrate, Bikaner to exercise power under Section 3(c) of the
Act of 2006. The action was taken by the District Magistrate,
Bikaner so as to detain the petitioner under the provisions of the
Act of 2006 has been approved by the advisory board, so also, by
the State Government. As such, there is no question to say that
action taken against the petitioner under the Act of 2006 to detain
him for one year till upto Sept., 2017 is illegal.
Learned Addl. Advocate General vehemently argued that the
criminal activities of the detenue Salman Khan disturbed the
peace and tranquility, so also caused eminent danger to the
maintenance of public order, therefore, the District Magistrate,
Bikaner after due satisfaction passed the impugned detention
order under the provision of the Act of 2006, therefore, it cannot
be said that order has been passed in casual manner. More so, the
District Magistrate after taking into consideration entire record of
the case rightly passed an order for detention because the
petitioner falls under the category of habitual offender under
Section 2(g) of the Act of 2006, so also, due to his activities
eminent danger created in public, therefore, the advisory board
considered the case of the petitioner upon material evidence
available on record and after due satisfaction, confirmed the order
of detention. The order of detention does not suffer from any
illegality nor it has been passed without any application of mind.
In view of the above submission, it is submitted that this writ
petition may kindly be dismissed.
After hearing the learned counsel for the parties, first of all,
we have perused the complaint (Annex.1) submitted by the SHO
Police Station Sadar, District Bikaner before the Superintendent of
Police, Bikaner on 18.9.2015 and the recommendation letter sent
by the Superintendent of Police, Bikaner to the District Magistrate,
Bikaner on 21.9.2015. In the complaint there is detail of 16 cases,
which is said to be registered against the petitioner. Admittedly,
the case of the petitioner for taking action was recommended by
the Superintendent of Police, Bikaner to the District Magistrate,
Bikaner on 21.9.2015 and after one year, the order of detention
was passed by the District Collector, Bikaner on 15.9.2016. For
good one year no action was taken by the District Magistrate,
Bikaner in spite of the fact that case of the petitioner for taking
action under Section 3(c) of the Act of 2006 was recommended on
the ground that petitioner become dangerous for public order. The
following details of the cases was submitted before the District
Magistrate, Bikaner by the Superintendent of Police, Bikaner,
which reads as under:-
Upon perusal of the above cases, two cases were registered
against the petitioner under Section 307 IPC, out of two, in one
case registered at Police Station Sadar on 4.2.2015, the
investigation was pending, on the date of taking action under the
Act of 2006. It is also obvious that out of 16 cases, in two cases
petitioner was acquitted after compromise under Section 323 and
341 IPC and in one case registered in the year 2011 under
Section 323, 341, 427and 34 IPC at Police Station JNV, the
petitioner was acquitted from the charges levelled against him.
Meaning thereby, the day on which the detention order was
passed, 13 cases were pending but in none of the case, the
detenue was convicted or held guilty. More so, he is facing trial in
those cases. Upon perusal of list of cases it is further revealed
that most of the cases are for the offence triable by magistrate.
In none of the case, incorporated, is of the nature to hold that
accused petitioner is hard core criminal or dangerous person as
defined under the provisions of the Act of 2006. The following
definition is incorporated under Section 2(c) of "dangerous
person" in the Act of 2006, which reads as under:
"(c) ''dangerous person'' means a person, who either by himself or as member or leader of a gang, habitually commits, or a attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (Central Act No.45 of 1860) or any of the offences publishable under Chapter V of the Arms Act, 1959 (Central Act No.54 of 1959) or any of the offences punishable under first proviso to sub-sec. (1), and sub-sec. (1-A) of Sec. 51 of the Wild Life (Protection) Act, 1972 (Central Act No.53 of 1972) or any offence punishable under sec. 67 of the Information Technology Act, 2000 (Central Act No.21 of 2000).
Similarly, under Section 2(g) there is definition of ''habitual'',
which also reads as under:
"(g) ''habitual'' with all its grammatical variations, includes acts or omissions committed repeatedly, persistently and frequently having a threat to continuity stringing together similar repetitive acts or omission but shall not include isolated, individual and dissimilar acts or omission;"
The case of the petitioner, placed before the advisory board
was decided by the advisory board vide order dated 19.10.2016
whereby the order of detention dated 15.9.2016 passed by the
District Magistrate, Bikaner under Section 3 of the Act of 2006 and
approved by the Government vide order dated 23.9.2016 was
confirmed vide order dated 19.10.2016. We have called record of
advisory board for perusal of the court. The advisory board
observed in the order that from the year 2009 cases were
registered against the detenue almost in ever year except in the
year when action was pending before District Magistrate. The
cases registered against the detenue are mostly for the offence
under the IPC and few of the cases for Arms Act, 1959. The
advisory board after taking into consideration the definition of
"dangerous person" held that detenue repeatedly committed
offence, therefore, became "habitual" as defined under Section
2(g) of the Act of 2006. The advisory board gave finding that
detenue is found to be "dangerous person" affecting pubic order
adversely so also, his conduct has been shown in the
recommendation made by the Superintendent of Police, Bikaner to
take action against him for detention.
After perusing the finding of the advisory board and list of
cases, first of all, it emerges from the facts that in none of the
case registered against the petitioner, he has been held guilty by
any of the court after trial. More so, it is one of the important fact
that case of the petitioner for taking action was recommended by
the Superintendent of Police, Bikaner on 15.9.2015 but action was
taken by the District Magistrate, Bikaner on 21.9.2016 after one
year, in the said period, no case was registered against the
petitioner, in spite of that, the detention order was passed on
15.9.2016 against him.
It is true that action can be taken against the
"dangerous person" as defined in the Act of 2006 if he is habitual
to commit offence. But in this case, most of the cases registered against the petitioner are not related with the public order, more
so, cases were registered against petitioner with regard to dispute
with individual. Only two cases were registered under Section
4 / 25 of the Arms Act and one case was registered under Section
19 / 54 of the Excise Act. After perusal of list of cases, we are of
the view that finding of the learned advisory board to confirm the
detention order is not in consonance with the intention of
legislature under which the Act of 2006 was enacted. The purpose
for which the Act was enacted is incorporated in the bottom of the
Act of 2006, which reads as under:
" An Act to provide for preventive detention of boot-leggers, dangerous persons, drug offenders, immoral traffic offenders and property grabbers for preventing their anti-social and dangerous activities prejudicial to the maintenance of public order."
Upon perusal of the list of cases it will reveal that none of
the case is related with offence for drug, immoral traffic and
property grabbing. Most of the case are related to the offence of
personal dispute. Therefore, upon consideration of the report
submitted by the Superintendent of Police, Bikaner before the
District Magistrate, Bikaner for taking action under the Act of 2006
are not sufficient to hold the petitioner as "dangerous person" as
defined under Section 2(c) of the Act of 2006.
The Division Bench of this Court at Jaipur bench in the case
of Ajay Rinwa (supra) held that in a matter where liberty of
person is at stake, the court would take liberal approach in the
procedural aspect.
In the case of Manohar Lal Vs. State of Rajasthan & Ors
reported in 2013 (3) RLW 1864 (Raj.), the coordinate bench of
this Court while considering number of judgments of the Hon''ble
Supreme Court gave the following verdict, which reads as under:
"8. It has also been held by the Apex Court in case of Madhu Garg Vs. Union of India & Anr. (2005 (2) WLC (SC) Criminal 109) that when one of the ground of detention is found to be based on irrelevant materials not germane for passing the order of detention, the entire order of detention shall stand vitiated in law.
So far as the definition of "dangerous person" is concerned, Section 2(c) of the said Act reads as under :-
"2(c) "dangerous person" means a person, who either by himself or as member or leader of a gang, habitually commits, or attempts to commit or abets the commission of any of the offences punishable under Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (Central Act No. 45 of 1860) or any of the offences punishable under Chapter V of the Arms Act, 1959 (Central Act No. 54 of 1959) or any of the offences punishable under first proviso to sub-section (1), and subsection (1A), of section 51 of the Wild Life (Protection) Act, 1972 (Central Act No. 53 of 1972) or any offence punishable under section 67 of the Information Technology Act, 2000 (Central Act No. 21 of 2000)"
The powers of the State Government to make orders for detaining certain persons under the said Act have been conferred under Section 3 of the said Act. In this regard, it is pertinent to note that the District Magistrate of the concerned area could also pass the order of detention under Section 3(2) of the said Act, if he is satisfied with respect to any person that such person was acting in the manner prejudicial to the maintenance of public order. As per Section 3(4) a person is deemed to be acting in any manner prejudicial to the maintenance of the public order, if such person is engaged in the activities interalia as a dangerous person which are likely
to effect adversely the maintenance of public order.
Now so far as the facts of the present case are concerned, the respondent No. 2 had passed the order dated 21.11.11 in exercise of his power under Section 3(2) of the said Act, on his having been allegedly satisfied that the petitioner was a dangerous person, and his activities were likely to effect adversely the maintenance of the public order. In the annexure to the said order, the respondent No. 2 had shown that there were seven cases pending against the petitioner. Now admittedly, the petitioner was already discharged from the case No. 10/11 shown at serial No. 6 on the date of passing of the said order and that no charge-sheet was filed in case No. 193/11 shown at serial No.7 of the said order. The other cases shown pending against the petitioner were the offences of similar nature, registered under Section 457 and 380 of IPC,and in all the said cases, the petitioner was already released on bail by the concerned court. If the cases at serial No. 6 and 7 are not taken into consideration, the last case registered against the petitioner being case No. 303/10 shown at serial No. 5 was registered on 4.12.10, and the impugned order was passed by the respondent No.2 under Section 3(2) of the said Act on 21.11.11 for detaining him. As rightly submitted by the learned counsel Mr. Yogesh Kumar Sharma for the petitioners, relying upon the decision of the Apex Court, in case of Rajinder Arora Vs. Union of India & Ors. ((2006) 4 SCC 796), there was no explanation coming forth from the respondents as to what activities, adverse to the maintenance of the public order were found to have been committed by the petitioner, requiring his detention and as to why there was so much of delay in passing the order of detention for the alleged illegal activities after 4.12.10. The learned Government counsel also was not in a position to explain as to what were the compelling circumstances requiring detention of the petitioner on 21.11.11. Under the circumstances and as held by the Apex Court, in the aforesaid decision, passing of the detention order after the delay of more than one year to the
alleged offence committed by the petitioner itself was a ground to set aside the detention order."
While considering the entire material available on record, we
are of the opinion that the finding of the District Magistrate,
Bikaner to treat the petitioner detenu as "dangerous person" so
as to take action under the Act of 2006, is not in consonance with
law for the reason that in none of the cases, the petitioner was
convicted, so also, all the cases registered against the petitioner
does not relate with the drug offences, immoral traffic, property
grabbing, so also action was taken by the District Magistrate,
Bikaner after one year from the date of recommendation of the
Superintendent of Police, Bikaner against the petitioner and in that
period, admittedly, no case was reported against the petitioner.
On the basis of above discussion, we are of the opinion that
the detention order dated 15.9.2016 passed by the District
Magistrate, Bikaner, approved by the sag vide order dated
23.9.2016 and subsequently confirmed by the advisory board on
19.10.2016 and the order of Government vide order dated
3.11.2016 are not sustainable in law.
Consequently, this habeas corpus writ petition is hereby
allowed. The order of detention dated 15.9.2016 passed by the
District Magistrate, Bikaner, approved by the State Government
vide order dated 23.9.2016 and subsequently confirmed by the
State Government vide order dated 3.11.2016 upon confirmation
by the advisory board are hereby quashed and set aside and the
petitioner detenue be released forthwith, if not needed in any
other case.