RAJESH SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This habeas corpus petition has been filed by Rajesh Sharma @ Raju Pandit through his brother and next friend Rakesh Sharma, challenging initial order of detention of the petitioner dated 28.09.2016 passed by Executive Magistrate cum Police Commissioner, Jaipur Metropolitan, Jaipur under Sec. 3(2) of the Rajasthan Prevention of Anti-Social Activities Act, 2006(for short 'the PASA Act') and order dated 06.10.2016 passed by the Joint Secretary to the Government, Home(Disaster Management) Department, Jaipur under Sec. 3(3) of the PASA Act, whereby aforesaid order of preventive detention of the petitioner was approved by the State Government. During pendency of the habeas corpus petition, order of preventive detention of the petitioner was confirmed by the State Government vide order dated 15.11.2016 under Sec. 13(1) of the PASA Act on recommendation of Advisory Board for a period of one year from 28.09.2016 to 27.09.2017. The petitioner has by filing application raised certain additional grounds to challenge the same, which have been taken on record.

(2.) Dr. Mithlesh Kumar, learned counsel for the petitioner argued that the Executive Magistrate cum Commissioner of Police, Jaipur has mechanically passed the order of detention of the petitioner under Sec. 3(2) of the PASA Act merely because 28 criminal cases were registered against the petitioner during the past 14 years, last one of which was registered on 04.02014. 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 28 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 offences alleged to have been committed by the petitioner are of petty nature, being under Sections 147, 224, 225, 255B, 186, 120B, 327, 341, 323, 307, 382, 384, 307, 504, 399, 402, 379, 452, 392, 458, 504, 506 IPC. Only few cases were such, which are of graver offences. For example, there was one case under Sec. 307 Penal Code registered in 2002 in which the petitioner has been acquitted vide judgment dated 012003. In another case under Sec. 307 Penal Code registered against the petitioner in 2003, the petitioner was acquitted vide judgment dated 29.04.2005. There was another case registered against the petitioner under Sec. 307 Penal Code in which the petitioner was also acquitted vide judgment dated 09.09.2008. In another case under Sec. 307 IPC, the petitioner has been acquitted vide judgment dated 204.2013. Only two cases under Sec. 307 Penal Code registered in 2010 and 2014 are pending trial. Last case registered against the petitioner was for offence under Sec. 332 and 353 Penal Code in 2015. Apart from above referred to 28 criminal cases, out of other five criminal proceedings initiated against the petitioner, one was of Sec. 9 of the Rajasthan Gunda Control Act and four were under Sec. 110, 107, 116(3), 151 Crimial P.C., in three of which, proceedings were dropped. Learned counsel, therefore, argued that activities of the petitioner in totality could not be in any manner said to be prejudicial to the maintenance of public order or such where he could be described as a dangerous person. All three cases merely attracts the law and order situation of the society and do not in any manner affect the public order. Conduct of the petitioner did not have any adverse impact on the tempo of the society, so as to effect the public order. Besides, there is no live connection between the activities of the petitioner and its impact on the society. Learned counsel in support of his argument relied upon the judgment of the Supreme Court in K.K. Saravana Babu Vs. State of Tamil Nadu & Another, (2008) 9 SCC 89.

(3.) Learned counsel argued that the petitioner filed present habeas corpus petition before this Court on 24.10.2016 and till that date, the detenu was not presented before the Advisory Board as required by Sec. 11 of the PASA Act, i.e. within three weeks from the date of detention of a person. The respondents failed to place the case of the detenu/petitioner before the Advisory Board as mandated by Sec. 11 of the Act of 2006 within a period of three weeks. The petitioner through his brother filed present habeas corpus petition on 24.10.2016 and he handed over his entire file containing all the documents to his counsel for preparation of his petition. He was thus not having relevant documents in his possession when he appeared before the Advisory Board and therefore, he could not make effective representation. As to the meaning of 'representation' learned counsel for the petitioner referred to P. Ramanatha Aiyar's Advanced Law Lexicon, 5th Edition, Halsbury, 3rd Editition, Vol. 26 page 186 to argue that a representation is a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact. The statement may be oral or in writing or arise by implication from words or conduct. It is clear from Annexure-R/9 that the petitioner has not been provided effective opportunity of presenting his representation to the Advisory Board as contemplated under Sec. 11 of the Rajasthan PASA Act within three weeks.