Rajasthan High Court - Jodhpur

Aarab Khan vs State & Ors on 1 August, 2016

Author:
Gopal Krishan Vyas

Bench:
Gopal Krishan Vyas
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

ORDER

D.B. Habeas Corpus Petition No.69/2016
Aarab Khan Vs. State of Rajasthan & Ors.

Date of judgment :: 1st August, 2016

HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
HON'BLE MR. JUSTICE G.R. MOOLCHANDANI

Mr. LD Khatri, for the petitioner.

Mr. SK Vyhas, AAG

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By the Court (Per Hon'ble Mr. Justice G.K. Vyas):

The instant habeas corpus writ petition has been filed

by the petitioner detenu Aarab Khan, resident of Vikeri

(Chhod), Police Station Sangad, District Jaisalmer to

challenge the order dated 11.12.2015 (Annex.1) passed by

the District Magistrate, Jaisalmer an d order dated

22.12.2015 (Annex.4) passed by the respondent no.2 Dy.

Secretary, Home (Disaster Management), Department,

Government of Rajasthan, Secretariat, Jaipur by which the

State Government confirmed the order dated 11.12.2015

passed by the District Magistrate while exercising powers

under
Section 3(2)
of the Rajasthan Prevention of Anti-

Social Activities Act, 2006 (hereinafter referred to as the

Act of 2006 for short) whereby the petitioner was detained
for one year.

As per the facts of the case, the Superintendent of

Police, Jaisalmer submitted details of criminal activities and

cases registered against the petitioner to the office of the

District Magistrate, Jaisalmer for taking action against him

under Section 3 of the Rajasthan Prevention of Anti Social,

Act 2006 (hereinafter referred to as the Act of 2006 for

short). Upon receiving such information, the District

Magistrate, Jaisalmer passed an order by invoking the

provisions of the Act of 2006 against the petitioner for one

year.

After passing detention order, the petitioner was

detained and a notice was served upon the petitioner on the

same day that if you want to say anything you may file

representation against the detention order and the said

detention order and representation will be placed before the

advisory board and you may appear before the advisory

board to make your submissions against the order of

detention.

In the report submitted by the Superintendent of

Police, Jaisalmer it was informed that 11 cases were

registered against the petitioner-detenue right from 2nd

Sept., 2013 to 30th Jan., 2015 for offence committed by

him under
Section 136
of the Electricity Act and other

offences of
IPC
.
The petitioner detenue filed his representation to the

government and same as placed before the advisory board

constituted by the Government under
Section 10
of the

Act of 2006. The petitioner was granted an opportunity to

appear before the advisory board to make his submissions.

The petitioner detenue filed his written submissions

before the advisory board and submitted that he has been

falsely involved in the criminal case but already released on

bail. It is also submitted that no offence has been

committed by him so as to fall under the definition of

"dangerous person". According to the petitioner last case

was registered against him in the month of Jan., 2015

whereas detention order was passed after 11 months in the

month of Dec., 2015. The detune appeared before the

advisory board and submit that he is illiterate person,

whatever material sent to him alongwith the notice cannot

be understood by him nor reasons incorporated in the

detention order can be understand, therefore, it is prayed

that the detention order may not be approved by the

board.

The advisory board after providing an opportunity of

hearing rejected the prayer of the petitioner and approved

the order of detention dated 11.12.2015 passed by the

competent authority. The State Government after approval

issued the impugned order dated 22.12.2015 whereby the
order passed by the District Magistrate, Jaisalmer was

confirmed to detain the petitioner for one year.

In this writ petition, the petitioner is challenging the

order dated 11.12.2015 passed by the District Magistrate,

Jaisalmer (Annex.1) and the order of the State Government

dated 22.12.2015 (Annex.4) whereby the order of

detention passed by the District Magistrate, Jaisalmer was

approved.

Learned counsel for the petitioner submits that the

orders Annex.1 an d 4 are illegal because District

Magistrate, Jaisalmer as well as the State Government has

not applied its mind while declaring the petitioner as

"dangerous person" as per the Act of 2006. Learned

counsel for the petitioner submits that although 11 cases

were registered against the petitioner detenue for offence

under
Section 136
of the Electricity Act and other offences

of
IPC
but in none of the cases, the petitioner has been

convicted, more so, he was granted bail by the learned trial

court and cases are pending. While inviting attention

towards the fact that last case was registered against the

petitioner detenue on 30.1.2015 and order of detention

was passed in the month of Dec., 2015, it is submitted that

preceding one year from the date of detention order no

case was registered against the petitioner, therefore, the

finding arrived at by the District Magistrate, Jaisalmer and
State Government so as to treat the petitioner as

"dangerous person" is not sustainable in law. The learned

counsel for the petitioner invited our attention towards the

important aspect of the case that in the definition of

"dangerous person" it is specifically provided that only

those person can be treated "dangerous person" under the

provisions of this Act, 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) can be

treated a dangerous person but in this Section the

Electricity Act is nowhere incorporated by the legislature,

therefore, as per the definition of
Section 2(c)
of the Act of

2006 , the finding given by the District Magistrate,

Jaisalmer and approved by the State Government to treat

the petitioner detenue as "dangerous person" is not in

consonance with law. It is also submitted that all above

submissions were made before the advisory board but

advisory board did not consider the prayer of the petitioner

and in very casual manner approved the detention order,

therefore, both the orders may kindly be quashed. In

support of his arguments, the learned counsel for the

petitioner invited our attention towards following judgment:

(
i) Bhanwar Lal Pareek Vs. State of Rajasthan &
Ors.
reported in 2016 (2) Cr.L.R. (Raj.) 954;
(ii) Rekha Vs. State of Tamilnadu & Anr. reported in
2011 (Suppl) Cr.L.R. (SC) 128

(
iii) Munagala Yadamma Vs. State of Andhra
Pradesh & Ors
reported in 2012 Cr.L.R. (S.C.)
(iv) Manohar Lal Vs. State of Rajasthan & Ors
reported in 2013 (3) RLW 1864 (Raj.)

(v) Abdul Nasar Adam Ismail Vs. State of
Maharashtra & Ors., reported in (2013) 4 SCC
(
vi) Jai Prakash Vs. District Magistarte, Bulandshahr
UP & Ors
reported in 1993 Cri. LJ 303

(vii) Ummu Sabeena Vs. State of Kerla reported in
2011 (suppl) Cr.L.R. (SC) 689.

Per contra, learned Addl. Advocate General-cum

Government Advocate has argued that the antecedent of

the detenue were considered objectively and after due

application of mind, the detention order was passed, which

is affirmed by the advisory board. The detention order was

passed on account of various criminal activities of the

petitioner to cause eminent danger to the maintenance of

the public order, that a need was fall to invoke provisions of

the Act of 2006. It is also submitted that the activities of

the petitioner detenue crated problem for national

security, so also, for power generation system in the entire

area, which is evident from the fact that 11 cases were

registered against him, which are still pending. The cases

were registered for theft of cable etc of the wind mills by
the petitioner. Due to the criminal activities of the detenue

a fear has been created among persons working and

establishing wind mills for generating electricity, therefore,

after recording complete reasons, the District Magistrate,

Jaisalmer passed an order of detention while exercising

powers under
Section 3(c)
of the Act of 2006. It is also

submitted that as per the material available on record it is

obvious that District Magistrate has rightly held petitioner

to be "dangerous person" because he was involved in

various criminal activities at the Indo-Pak border and

disturbed production of electricity, which is used for BSF

and Air Force. According to the learned Addl. Advocate

General the cases registered against the petitioner clearly

speaks volumes of his activities prejudicial to the public

order, therefore, the detention order has been passed after

being satisfied upon material placed before the competent

authority. The District Magistrate passed the order of

detention after subjective satisfaction which clearly reflects

from the grounds incorporated in the reply. The crux of the

argument of the learned Addl. Advocate General is that due

to registration of number of cases against the petitioner

detenue from 2013 to 2015, the District Magistrate

exercised its powers under the Act of 2006 so as to

maintain public order. Against the detention order passed

by the District Magistrate, Jaisalmer, the representation of
the petitioner detenue was objectively considered by the

advisory board and after due deliberations the advisory

board approved the order of detention for a period of one

year, thereafter, State Government confirmed the order

therefore, this writ petition may be dismissed. In support of

his argument, the learned Addl. Advocate General invited

our attention towards the judgment in the case of Dinu

Khan Vs. State of Rajasthan & Ors. (DB Habeas Corpus

Petition No.7824/2014), decided on 20.3.2015, in the case

of Babu Singh Vs. State of Rajasthan (DB Habeas Corus

Petition No.4021/2015), decided on 19.5.2015 and in the

case of Hari Singh Vs. State of Rajasthan (D.B. Habeas

Corpus Petition No.5525/2015), decided on 13.7.2015 and

submits that the instant petition may kindly be dismissed.

After hearing the learned counsel for the parties, we

have perused the record placed before us. Undoubtedly,

following cases were registered against the petitioner,

details of those cases are as follows:

"FIR no.75 dated 2.9.2013 was registered under

Section 136
of the Electricity Act for the charge of
stealing away cables from the windmills plants. In the
said case recovery of theft articles was made. After
investigation challan was filed
Section 136
of the
Electricity Act and the matter is under trial in the court
of District & Sessions Judge, Jailsalmer. However, this
did not put an end to his criminal activities affecting
the public order adversely.

FIR No.88 dated 26.09.2013 was registered
under
section 136
of the Electricity Act for the charge
of stealing away cables from the windmills plants. In
the said case recovery of theft articles was made.
After investigation challan was filed
section 136
of the
Electricity Act and the matter is under trial in the court
of District & Sessions Judge, Jailsalmer. However, this
did not put an end to his criminal activities affecting
the public order adversely.

FIR No.94 dated 23.10.2013 was registered at
Police Station Sangad under
Section 394
,
,
IPC and 136 of the
Electricity Act
as the detenue and
others had stolen away cable from the wind mill. In
this case the stolen cable was recovered. Aft e r
investigation challan was filed and trial is pending in
the court of District & Sessions Judge, Jaisalmer.

A case No.99 dated 22.11.2013 under
Section
,
,
,
,
IPC and
section 136
of
Electricity Act was registered. At the instance of
accused persons 6 Kg of cable was recovered. After
investigation challan was filed and trial is pending in
the court of District & Sessions Judge, Jailsalmer.

A case No.100 dated 22.11.2013 under
Section
,
of Electricity Act was registered. At the
instance of accused persons cable weighing 51 Kg and
280 Grams was recovered. After investigation challan
was filed and trial is pending in the court of District &
Session Judge, Jaisalmer.

A case No.105 dated 20.12.2013 under
Section
of Electricity Act was registered. At the instance
of accused persons 5 Kg cables were recovered. After
investigation challan was filed and trial is pending in
the court of District & Sessions Judge, Jaisalmer.

Case No.1 dated 04.01.2014 was registered
under
Section 137
,
,
of Electricity Act alleging
that the detenu and ors stole away cables from
windmill plant. After investigation challan was filed
and the matter is under trial in the court of District
and Sessions Judge, Jaisalmer.

A case No.71 dated 23.06.2014 under
Section
,
of Electricity Act was registered. At the
instance of accused persons 100 Kg cables were
recovered. After investigation challan was filed and
trial is pending in the court of District & Sessions
Judge, Jaisalmer.

A case No.89 dated 12.08.2014 under
Section
,
and
of Electricity Act was registered. At
the instance of accused persons 4 Kg copper wire
were recovered. After investigating challan was filed
and trial is pending in the court of District & Sessions
Judge,Jaisalmer.

A case No.10 dated 24.01.2015 under
Section
IPC and
section 136
of Electricity Act was
registered. At the instance of accused persons 7 Kg
copper wire were recovered. After investigation
challan was filed and trial is pending in the court of
District & Sessions Judge, Jaisalmer.

Case No.8 dated 30.01.2015 was registered
under
section 379
IPC read with
section 136
of the
Electricity Act. The accused were arrested and from
their possession 10 Kg cables were recovered. After
investigation challan under
Section 457
and
Electricity Act was filed."

Upon perusal of the above details of the cases it is

obvious that from 2.9.2013 to 30.1.2015, 11 cases were

registered against the petitioner, but in none of the case,

the petitioner has been convicted, all the cases are

pending. It is also very important to observe that all the 11

cases were registered under
Section 136
of the Electricity

Act as well as for in some cases alongwith other offence of

IPC
. No doubt, the offences alleged to have been

committed by the petitioner are such as to attribute

punishment under the
Electricity Act
as well as
IPC
, but for

taking recourse to preventive detention, the District

Magistrate and its authorities were under obligation to

consider the definition of "dangerous person" enumerated

in
Section 2(c)
of 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) .

Upon perusal of the above definition it will reveal that

legislature in its wisdom has expressly included specific acts

enacted for other criminal activities in addition to the

offences punishable under Chapter XVI and XVII of the

Indian Penal Code
but the
Electricity Act
is not included in

the definition of "dangerous person" whereas other acts

like Arms Act, Wild Life Protection Act and Information and

Technology Act are included alongwith the offences of
IPC

in the definition of "dangerous person". Here in this case,

out of 11 cases, 7 cases were registered under
Sections
,
,
,
and
of the Electricity Act. In

remaining cases, the cases were registered under the

Electricity Act
as well as for the offence of
IPC
, but all the

11 cases are still pending, in none of the case, the

petitioner has been convicted, more so, has been granted

bail by the court.

Upon consideration of the definition of the "dangerous
person" under
Section 2(c)
of the Act of 2006, the

petitioner cannot be categorized as "dangerous person" or a

"habitual offender" of warranting any arrest and detention

by exercise of powers under
Section 3(1)
of the Act of

2006 because in all the cases, the petitioner is facing trial.

It is also undisputed fact that last case was registered

against the petitioner detenue on 30.1.2015 and order of

detention was passed in the month of Dec., 2015. Meaning

thereby, preceding one year from the date of detention no

case was registered against the petitioner. There is

strength in the argument of the learned counsel for the

petitioner that petitioner's case does not fall under the

definition of "dangerous person" for the reason that in none

of the cases he has been convicted, so also, from last one

year from the date of detention order no case was

registered against him, so also, the offence under
Electricity

Act
is not included to define any person as "dangerous

person".

In our opinion, at the time of passing any detention

order, the definition of "dangerous person" was to be seen

objectively by the District Magistrate, Jaisalmer as well as

by the State Government and advisory board. It is true

that if any person became dangerous for public order, then

the detention order could be passed by invoking the

provisions of the Act of 2006 but at the same time, the
authorities cannot be permitted to ignore
Article 21
of the

Constitution of India which is the fundamental right granted

by the Constitution of India. The right of liberty and

freedom granted under
Article 21
of the Constitution of

India implies that before a person is imprisoned he should

be given full opportunity of hearing and his expression

should be considered properly. Here in this case, order of

detention has been passed for the reason that petitioner is

involved to commit offence under
Electricity Act
in the

border area and 11 cases were registered against him

within span of one and half years for theft of electricity, but

this Court cannot lose its sight of the fact that at the time of

passing detention order it was the duty of the District

Magistrate, Jaisalmer to consider the fact that from last one

year no case was registered against him even though he

was granted bail in all the cases. The District Magistrate,

Jaisalmer and State authorities were under obligation to

consider definition of "dangerous person" enumerated

under
Section 2(c)
of the Act of 2006, objectively but here

in this case it has not been considered properly while

passing order for detention to declare the petitioner as

"dangerous person".

We have perused the order of advisory board also.

The advisory board considered the definition of "dangerous

person" enumerated in the Act of 20016 and held that even
if a person committed offence under Wild Life Protection Act

and Information Technology Act can be detained, therefore,

in this case, the detune who has committed offence under

Chapter XVI and XVII of
IPC
apart from other offences

under the
Electricity Act
, as such, the order of detention is

justified. The advisory board although approved the order

of detention but upon perusal of order of approval dated

11.1.2016 it can be said that advisory board has not only

approved the order, but virtually gave judicial verdict on

the basis of various judgments placed before the advisory

board for consideration by the Government, but this court

cannot lose sight of the fact that before advisory board the

petitioner was present in person, no lawyer appeared on his

behalf to submit the judgments in defence by this Court and

by the Hon'ble Supreme Court in which it is held that in the

event of passing detention order, th e definition of

"dangerous person" should be considered objectively on the

basis of material available on record.

It is true that in the case of Dinu Khan and Babu

Singh (supra), the Division Bench of this Court dismissed

the writ petition filed by the detenue who was involved in

the case of
Electricity Act
and this Court dismissed the writ

petition but upon considering the facts of the present case,

it emerges that from last preceding one year from the date

of detention order dated 11.12.2015 no case was registered
against the petitioner for committing theft under
Section
or other Sections of the Electricity Act, therefore, at the

time of passing order of detention it was the duty of the

District Magistrate and State Government as well as the

Advisory Board to consider the said fact, so also, the fact

that all the cases registered against the petitioner are still

pending, but ignoring the said fact the order of detention

was passed and consequently, approved by the State

Government and advisory board. It is true that power can

be exercised under
Section 3
of the Act of 2006 for passing

detention order if any person became dangerous for public

order but at the same time, it is the duty of the authorities

to pass order of detention after taking into consideration

the entire facts in right perspective.
The Act
of 2006 is

enacted by the State legislature in which the definition of

"dangerous person" is enumerated under
Section 2(c)
of

the Act in which alongwith offences of
IPC
other Acts are

included but
Electricity Act
is not included so as to declare a

person as "dangerous person", therefore, only on the basis

of cases registered under
Electricity Act
, the detention order

is not sustainable in law. The entire record is to be seen for

the said purpose.

In the case of Manohar Lal (supra), 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.

9. 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) "

10. T he 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.

11. 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
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 in t o
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 .1 2 .1 0 . Th e learned
Government counsel also was not in a
position to explain as to what were the
compelling circumstances r e q u ir i n g
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."

On th e basis of above adjudication and upon

consideration of the facts, the order of detention is not

sustainable in law, therefore, this habeas corpus petition is

herby allowed. The order dated 11.12.2015 (Annex.1)

passed by th e District Magistrate, Jaisalmer while

exercising powers under
Section 3(2)
of the Act of 2006

which is subsequently approved by the advisory board and

affirmed by the State Government vide order dated

22.12.2015 (Annex.4) are hereby quashed and set aside,

the petitioner detenu Aarab Khan shall be released

forthwith if not needed to any other case.

(G.R. MOOLCHANDANI),J. (GOPAL KRISHAN VYAS),J.

cpgoyal/-