KAMAL KISHORE TRIPATHI SON OF SHRI RAM NIWAS Vs. THE STATE OF RAJASTHAN THROUGH SECRETARY, DEPARTMENT OF HOMES, SECRETARIAT, JAIPUR AND OTHERS

JUDGEMENT

(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 Sec. 3(2) of the Act of 2006 along with the grounds of detention containing 347 pages and informed that he could make representation there against 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 108.2016 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 208.2016 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 208.2016 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 208.2016 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- 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 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.

(3.) 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 Sections 323, 336, 341, 337, 279, 379, 427, 325, 327 IPC, except few cases, which are under Sec. 365, 392 and 307 Penal Code in one of which (Case No. 519/2015), he has been acquitted. Two cases have been registered against the petitioner under Sections 4/25 Arms Act. In fact, out of 19 cases, 8 cases pertain to bailable offences. Besides, the petitioner has been acquitted in 8 cases and he has been extended benefit of probation in one case, in which he has been convicted for offence under Sec. 4/25 of the Arms Act. Remaining cases are pending trial. Learned counsel argued that proceedings under Sec. 110 Crimial P.C. initiated against the petitioner vide complaints dated 27.06.2013, 16.09.2014 and 30.02015 were dropped by the Executive Magistrate cum Commissioner of Police, Headquarter, Jaipur for want of evidence. It was only in one complaint dated 15.12.2015 filed under Sec. 110 Crimial P.C. that the petitioner was bound down to maintain peace for a period of one year. Learned counsel, therefore, argued that activities of the petitioner in totality could not be in any manner prejudicial to the maintenance of public order or said to be such where he could be described as a dangerous person. It is argued that he is a completely changed person after his marriage in 201 After the last incidence of 25.04.2013 with regard to which FIR for offences under Sections 143, 323, 341, 427, 392 Penal Code was registered against him, he did not indulge in any criminal case for as long as two years till a false criminal case was registered against him for offences under Sec. 147, 148, 149, 323, 307, 427 Penal Code on 04.06.2015 in which he was eventually acquitted vide judgment dated 21.12.2015. Conduct of the petitioner did not have any adverse impact on the tempo of the society so as to effect the public order. It is argued that Sec. 11 of the Act of 2006 mandates that in every case where a detention order has been made under the 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 Sec. 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. 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 Sec. 11 of the Act of 2006 was, thus, violated and detention of the petitioner became illegal.