Laljibhai Kadiabhai Bhill vs State Of Gujarat
2021 Latest Caselaw 17886 Guj

      C/SCA/8612/2021                                        ORDER DATED: 30/11/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
          R/SPECIAL CIVIL APPLICATION NO. 8612 of 2021
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                          LALJIBHAI KADIABHAI BHILL
                                    Versus
                        STATE OF GUJARAT & 2 other(s)
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Appearance:
DARSHIT R BRAHMBHATT(8011) for the Petitioner(s) No. 1
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 1,2,3
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                       Date : 30/11/2021
                           ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for quashment of the order of detention, if any passed by the detaining authority against the petitioner under the provisions of the Gujarat Prevention of Anti Social Activities Act, 1985 (herein after referred to as 'PASA') at pre-execution stage.

2. Heard learned advocate Mr.Brahmbhatt for the petitioner and learned AGP Mr.Dhawan Jayswal for the respondents.

3. Learned advocate for the petitioner has referred to the averments made in this petition and thereafter referred to the FIR, copy of which is placed on record at page 16 of the compilation. After referring to the said FIR, it is submitted that FIR being C.R.No.10184997200308 of 2020 has been filed against the present petitioner on 28.03.2020 for the offence punishable under Sections 376, 376(2)(b), 376(2)(m) of the Indian Penal Code and under Sections 4 and 6 of the

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POCSO Act. It is submitted that petitioner came to know from the reliable sources that the respondent authority has already passed an order of detention against the petitioner relying upon the said FIR. Petitioner has, therefore, filed this petition at pre-execution stage. Learned advocate for the petitioner submits that the present petition is maintainable in view of the decision rendered by the Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod Vs. State of Gujarat and another reported in 2015 (1) GLR 703. It is submitted that the case of the petitioner falls under the category of rare and exceptional case and therefore this Court is empowered to entertain the present petition which is filed at pre-execution stage.

4. Learned advocate for the petitioner has referred to the affidavit filed by the respondent authority, copy of which is placed on record at page 21 of the compilation, and thereafter submitted that on 18.01.2021 the respondent detaining authority has passed an order of detention against the present petitioner under the provisions of the PASA.

5. Learned advocate for the petitioner has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and Others Versus Smt. Alka Subhash Gadia and Another. reported in 1992 (Suppl.) (1) SCC 496, and more

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particularly, paragraph 30 of the said decision. Case. Learned advocate for the petitioner has also placed reliance upon the decision of the Hon'ble Supreme Court in the case of Rekha Versus State of Tamilnadu, reported in 2011 (5) SCC 244 , more particularly, on paragraph 30.

6. After referring to the aforesaid decisions, learned advocate for the petitioner submitted that this Court may quash and set aside the order of detention dated 18.01.2021 passed by the detaining authority against the present petitioner.

7. On the other hand, learned AGP Mr.Jayswal appearing for the respondents has opposed this petition. Learned AGP has placed on record the order of detention dated 18.01.2021 passed by the respondent No.2 - detaining authority. After referring to the same, learned AGP contended that looking to the activities carried out by the present petitioner, the respondent - detaining authority has passed the order of detention.

8. After referring to the aforesaid decisions as well as the decision rendered by the Full Bench of this Court in the case of Vijaysinh (supra), learned AGP contended that the case of the petitioner does not fall under the category of rare or exceptional case. Learned AGP, therefore, urged that this petition be dismissed.

9. I have considered the submissions canvassed by

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learned advocates appearing for the parties. I have also perused the material placed on record. While deciding the petition filed at pre- execution stage by the concerned petitioner, this Court has to consider the relevant aspects as per the decision rendered by the Full Bench of this Court in the case of Vijaysinh (supra). The Full Bench of this Court has held that the petition challenging the order of detention at pre-execution stage is maintainable, however, the powers can be exercised sparingly and in exceptional cases. Similar view has been taken by the Division Bench of this Court while passing an order dated 18.06.2020 passed in Letters Patent Appeal No.108 of 2020 in the case of Mukeshbhai Versibhai Desai Versus State of Gujarat. In both the aforesaid cases, this Court has considered the decision rendered by the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India and Others Versus Smt. Alka Subhash Gadia and Another. reported in 1992 (Suppl.) (1) SCC 496. In the said case the Hon'ble Supreme Court has observed in paragraph No.30 as under :-

 "30.       As     regards       his     last       contention,            viz.,
          that      to    deny      a    right       to     the      proposed
          detenu         to      challenge           the         order           of

detention and the grounds on which it is made before he is taken in custody is to deny him the remedy of judicial review of the impugned order which right is a part

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of the basic structure of the Constitution, we find that this argument is also not well merited based as it is on absolute assumptions. Firstly, as pointed out by the authorities discussed above, there is a difference between the existence of power and its exercise. Neither the Constitution including the provisions of Art. 22 thereof nor the Act in question places any restriction on the powers of the High court and this court to review judicially the order of detention. The powers under Articles 226 and 32 are wide, and are untrammelled by any external restrictions, and can reach any executive order resulting in civil or criminal consequences. However, the courts have over the years evolved certain self-restraints for exercising these powers. They have done so in the interests of the administration of justice and for better and more efficient and informed exercise of the said powers. These self-imposed restraints are not confined to the review of the orders passed under detention law only. They extend to the orders passed and decisions made under all laws. It is in pursuance of this self-evolved judicial policy and in conformity with the self-imposed internal restrictions that the courts

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insist that the aggrieved person First allow the due operation and implementation of the concerned law and exhaust the remedies provided by it before approaching the High court and this court to invoke their discretionary extraordinary and equitable jurisdiction under Articles 226 and 32 respectively. That jurisdiction by its very nature is to be used sparingly and in circumstances where no other efficacious remedy is available. We have while discussing the relevant authorities earlier dealt in detail with the circumstances under which these extraordinary powers are used and are declined to be used by the courts. To accept Shri Jain's present contention would mean that the courts should disregard all these time-honoured and well-tested judicial self-restraints and norms and exercise their said powers, in every case before the detention order is executed. Secondly, as has been rightly pointed out by Shri Sibal for the appellants, as far as detention orders are concerned if in every case a detenu is permitted to challenge and seek the stay of the operation of the order before it is executed, the very purpose of the order and of the law under which it is made will be frustrated since such orders

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are in operation only for alimited period. Thirdly, and this is more important, it is not correct to say that the courts have no , power to entertain grievances against any detention order prior to its execution. The courts have the necessary power and they have used it in a proper cases as has been pointed out above, although such cases have been few and the grounds on which the courts have interfered with them at the pre-execution stage are necessarily very limited in scope and number, viz., where the courts are prima facie satisfied (i) that the impugned order is not passed under the Act under which it is purported to have been passed, (ii) that it is sought to be executed against a wrong person, (iii) that it is passed for a wrong purpose,

(iv) that it is passed on vague, extraneous and irrelevant grounds or (v) that the authority which passed it had no authority to do so. The refusal by the courts to use their extraordinary powers of judicial review to interfere with the detention orders prior to their execution on any other ground does not amount to the abandonment of the said power or to their denial to the proposed detenu, but prevents their abuse and the perversion of the law in question."

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10. From the aforesaid guidelines laid down by the Hon'ble Supreme Court in the aforesaid decision, it can be said that this Court can interfere with the order of detention at pre-execution stage under certain circumstances including that if the order is passed on vague, extraneous and irrelevant grounds.

11. In a judgment in the case of Rekha Versus State of Tamilnadu reported in 2011 (5) SCC 244, the Hon'ble Supreme Court has observed in paragraph No.30 as under :-

"Whenever an order under a preventive detention law is challenged one of the questions the court must ask in deciding its legality is : Was the ordinary law of the land sufficient to deal with the situation ? If the answer is in the affirmative, the detention order will be illegal. In the present case, the charge against the detenu was of selling expired drugs after changing their labels. Surely the relevant provisions in the Indian Penal Code and the Drugs and Cosmetics Act were sufficient to deal with this situation. Hence, in our opinion, for this reason also the detention order in question was illegal."

12. From the aforesaid observations made by the Hon'ble Supreme Court, it can be said that whenever an order under a preventive detention law is challenged, one of the questions the

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Court must ask in deciding its legality is, was the ordinary law of the land sufficient to deal with the situation? If the answer is affirmative, the detention order will be illegal.

13. Keeping in view the aforesaid decisions if the facts of the present case are carefully examined, it is revealed that the detaining authority has passed an order on 18.01.2021 relying upon solitary offence filed against the present petitioner. I have perused the order of detention passed by the detaining authority, copy of which is placed on record by learned AGP during the course of hearing of this petition and in the facts of the present case, this Court is of the view that the present case is rare case where this Court can exercise powers under Article 226 of the Constitution of India at per- execution stage. In view of the aforesaid discussion and in the facts of the present case, I am inclined to consider the case of the petitioner.

14. In view of the above, the petition is allowed.

The order of detention dated 18.01.2021 passed by the respondent - detaining authority is hereby quashed and set aside. Rule is made absolute. Direct service is permitted.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI