2017 (3) TMI 1877 - HC - Indian Laws

Preventive detention of the petitioner - whether the respondents by not placing the grounds of detention before Advisory Board within three weeks of petitioner s detention have violated provisions of Section 11 of the Act of 2006? - HELD THAT - Requirement of Section 11 of the Act of 2006 in placing the matter before the Advisory Board thus stood complied with. In the present case the petitioner was detained on 01.08.2016; meeting of the Advisory Board was convened on 29.08.2016 and the report of the Advisory Report dated 03.09.2016 was received by State Government on 06.09.2016. Further requirement of Section 12 of the Act of 2006 according to which the Advisory Board has to submit its report within 50 days from the date of detention of the detenu was also complied with - It is thus clear that not only matter of the petitioner was placed before the Advisory Board within requisite period of three weeks but report was also submitted by the Advisory Board to the State Government much before expiry of 50 days from the date of detention of the petitioner. Argument of learned counsel the petitioner in this behalf is rejected. Whether consideration of the case of the petitioner by the Advisory Board was vitiated by reason of rejection of representation by the State Government rather than forwarding the same with its comments to the Advisory Board? - HELD THAT - 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 District Magistrate but if after making of such order and placing the matter before the Advisory Board for its consideration any representation is made by the detenu to the government authority/government and the matter is pending before the Advisory Board the Government should necessarily forward such representation to the Advisory Board rather than rejecting it. In the facts of the case rejection of representation dated 22.08.2016 by the State Government vide order dated 26.08.2016 after it had forwarded the grounds of detention to the Advisory Board on 10.08.2016 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. Present habeas corpus petition deserves to succeed and is accordingly allowed.

Summary

Issues Involved:
1. Compliance with Section 11 of the Rajasthan Prevention of Anti-Social Activities Act, 2006.
2. Forwarding of the detenu's representation to the Advisory Board.
3. Validity of the detention order.

Issue-wise Detailed Analysis:

1. Compliance with Section 11 of the Rajasthan Prevention of Anti-Social Activities Act, 2006:
The petitioner argued that the respondents violated Section 11 of the Act by not placing the grounds of detention before the Advisory Board within three weeks. The court noted that the order of detention was passed on 01.08.2016, and the grounds of detention were forwarded to the Advisory Board on 10.08.2016, which was within the required three-week period. Although the meeting initially scheduled for 22.08.2016 was postponed to 29.08.2016, the court found that the requirement of Section 11 was met, as the matter was placed before the Advisory Board within the stipulated time.

2. Forwarding of the detenu's representation to the Advisory Board:
The petitioner contended that the State Government rejected his representation instead of forwarding it to the Advisory Board, violating Article 22(4) and (5) of the Constitution of India. The court referenced several Supreme Court judgments, including *Jayanarayan Sukul vs. State of West Bengal* and *K.M. Abdulla Kunhi and B.L. Abdul Khader vs. Union of India & Others*, which established that the government must forward the detenu's representation to the Advisory Board if it is received before the Board concludes its proceedings. The court found that by rejecting the representation on 26.08.2016, the State Government violated this principle, thereby vitiating the proceedings of the Advisory Board and the subsequent confirmation of the detention.

3. Validity of the detention order:
The petitioner argued that the detention order was illegal and unconstitutional, as the authorities failed to apply their mind to the material on record. The court examined the procedural compliance and the grounds for detention. It found that the State Government's failure to forward the detenu's representation to the Advisory Board and the subsequent rejection of the representation rendered the detention order invalid.

Conclusion:
The habeas corpus petition was allowed, and the order dated 09.09.2016 was quashed. The respondents were directed to set the petitioner free from detention forthwith. The court emphasized the importance of procedural compliance and the necessity of forwarding the detenu's representation to the Advisory Board to ensure a fair and just consideration of the detention case.