- (1.) THE Collector, Nagaur under an order dated 07.12.2011 detained the petitioner 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"). Being aggrieved by the same, the petitioner has preferred this petition for writ.
(2.) IN pursuant to the order dated 3.9.2012 the record having necessary nothings on the basis of which order of detention was passed is made available for perusal of the Court. On perusal it reveals that the order is founded on a request made by the District Magistrate, Nagaur to empower him to exercise powers under Sub-Section (1) of Section 3 of the Act of 2006. On asking for advice, the Assistant Legal Remembrance made a note in the following terms : ...[VERNACULAR TEXT OMMITED]... Words, "circumstances prevailing or likely to prevail" in an area of local limits of its jurisdiction of district magistrate, cast legal obligation upon the state Govt. to record its satisfaction particularly about an area of a district where "circumstances are prevailing or likely to prevail", calling for conferment of powers upon the district magistrate of that area, which can certainly be in the entire district or the state but there must exist material on record to show the satisfaction having been arrived at or recorded by State Government for conferring powers upon a district magistrates u/s 3(2) for entire State or a particular district or wherever necessary. ...[VERNACULAR TEXT OMMITED]... The note made by the Assistant Legal Remembrance was placed before the Principal Secretary to the Government of Rajasthan, Department of Home Affairs, who approved the recommendations made by the Assistant Legal Remembrance. The same were also further approved by the other higher authorities. From perusal of entire record we do not find any discussion necessary to satisfy that circumstances prevails or likely to prevail in the area are prejudicial to particular order and that requires delegation of powers to District Magistrate, Nagaur. A Division Bench of this Court while examining similar issue in D.B. Civil Writ (Habeas Corpus) Petition No.6123/2012 (Kishan Singh Vs. State of Rajasthan & Anr.), decided on 27th August, 2012 held as follows : "As already noticed, the object of the Act of 2006 is to provide for preventive detention of the boot-leggers, dangerous person, drug offenders, immoral traffic offenders and property grabbers for preventing their antisocial and dangerous activities prejudicial to the maintenance of public order. As per the scheme of the Act of 2006 the State is empowered to detain a person on being satisfied that the detention of such person is necessary with a view to prevent him from acting in any manner prejudicial to the maintenance of public order. This authority of the State may be delegated to a District Magistrates, if the State Government is satisfied that the circumstances prevailing or likely to prevail in any area within the jurisdiction of any District Magistrate demand so. Meaning thereby, as per Section 3 (1) of the Act of 2006 the State Government is required to satisfy itself with regard to the activities of an individual which are prejudicial to maintenance of public order and this power can be further delegated to a District Magistrate, if circumstances prevailing or likely to prevail in any area within his jurisdiction are of such grave nature that local consideration of individual activities is necessary. This power of delegation appears to have been given by the legislature to the State Government to meet extraordinary circumstances existing or apprehended in any specific area or region of the State. There may be serious threat in any part of the State in maintenance of the public order due to the activities of boot-leggers, dangerous person, drug offenders, immoral traffic offenders and property grabbers at large and to meet such serious threat the power of the State as per Section 3(1) of the Act of 2006 can be delegated to the District Magistrates concerned, but not otherwise. Such delegation can be made as postulated under Section 3(2) of the Act of 2006 by considering the circumstances prevailing or likely to prevail in the area concerned. For passing of its authority to a District Magistrate, the State is not supposed to consider the activities of any individual, but the objective circumstances prevailing or likely to prevail. There may be a boot-legger, dangerous person, drug offender, immoral traffic offender and property grabber in a district or a part thereof, but that in itself is not sufficient to make delegation of powers to a District Magistrate. The stray incidents of an individual may be of cases pertaining to the issue of law and order, but not of public order. The State Government has to satisfy itself with the material available regarding the situation arisen in the area concerned that the public order is in endanger and that is sufficient for delegation of the powers of Section 3(1) of the Act of 2006 to the District Magistrate." In the instant matter, the State Government has not considered any circumstances prevailing or likely to prevail to arrive at a conclusion that delegation of powers to District Magistrate was necessary for maintenance of public order. The State Government without examining such circumstances in the area concern exercised the powers under Sub-Section (2) of Section 3 of the Act of 2006 and issued the notification dated 2011. The notification in the light of law laid down by Division Bench of this Court in the case of Kishan Singh (supra) is apparently bad. Accordingly the same is quashed. Accordingly, this petition for writ is allowed. The notification dated 09.2011 and the detention order dated 07.2011 are declared illegal, hence quashed. The petitioner be released forthwith, if not otherwise required to be detained in some other matter. ;