Mohammedali Alias Moinali ... vs State Of Gujarat
2021 Latest Caselaw 16459 Guj

   C/SCA/4689/2020                           ORDER DATED: 21/10/2021



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/SPECIAL CIVIL APPLICATION NO.           4689 of 2020

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       MOHAMMEDALI ALIAS MOINALI ABEDALI PATHAN
                         Versus
             STATE OF GUJARAT & 2 other(s)
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Appearance:
RAZIN S ZEENA(9377) for the Petitioner(s) No. 1
DS AFF.NOT FILED (R)(71) for the Respondent(s) No.
2,3
MR JAYNEEL PARIKH, ASSISTANT GOVERNMENT PLEADER(1)
for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                         Date : 21/10/2021

                             ORAL ORDER

1. This petition is filed under Article 226 of the Constitution of India in which the petitioner has prayed for the following reliefs :-

"(A) YOUR LORDSHIP be pleased to issue a Prohibition or a writ in the nature of Prohibition or any other appropriate writ, order and or direction, quashing and setting aside threatening action of respondent No.2 and 3, of passing the order of detention under PASA Act against the petitioner and if the order of detention is already passed by respondent No.2 and 3 against the petitioner, the same may be quashed and set aside as being illegal invalid, null and void and arbitrary, suffers from total and arbitrary, suffers from total non application of mind, without jurisdiction and competence suffering from mala fides and violative of Art.

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14, 19 and 21 of the Constitution of India;

(B) YOUR LORDSHIPS be pleased to restrain the respondents and / or their agent, servants, persons, employees etc. from executing the order of detention if passed upon the petitioner pending the admission, hearing and final disposal of this petition;

(C) YOUR LORDSHIPS be pleased to pass such other and further relief that is just, fit and expedient in the fact and circumstances of the case may be granted."

2. Heard learned advocate Mr. Razin S. Zeena for the petitioner and learned AGP Mr. Jayneel Parikh for the respondent - State.

3. It is submitted by learned advocate for the petitioner that the petitioner has filed this petition under Article 226 of the Constitution of India as the petitioner was apprehending his detention under the provisions of Gujarat Prevention of Anti Social Activities Act, 1985 (herein after referred to as 'PASA') on account of registration of FIR/s as described in paragraph No.3 of the petition. Learned advocate for the petitioner has referred to the averments made in the memo of the petition and thereafter contended that on the basis of the FIR which is placed on record at page No.13 of the compilation, the respondent authority will pass the order of detention against the petitioner. It is further submitted that this Court has

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passed an interim order on 20.02.2020 whereby this Court has granted protection to the petitioner.

4. Learned AGP at this stage has placed on record the order dated 06.02.2020 passed by the respondent detaining authority against the present petitioner. It is submitted that the detaining authority has passed an order of detention relying upon two FIRs which have been registered against the present petitioner. Learned AGP has referred to the said order of detention and thereafter contended that when the detaining authority has after application of mind passed an order of detention against the petitioner, this Court may not entertain this petition at pre-execution stage. It is therefore urged that this petition be dismissed.

5. I have considered the submissions canvassed by 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 @ Gatti Pruthvisinh Rathod Vs. State of Gujarat and another reported in 2015 (1) GLR 703. The Full Bench of this Court has held that the petition challenging the order of detention at pre- execution stage is maintainable, however, the

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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 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

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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 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 are in operation only for alimited period.

Thirdly, and this is more important, it is

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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."

6. 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.

7. 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

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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."

8. From the aforesaid observation 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 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.

9. In a judgment in the case of Pushkar Mukherjee and Others Versus State of West Bengal reported in AIR 1970 SC 852. The Hon'ble Supreme Court has observed in paragraph No.8 as under :-

"8. The question to be considered in the present case is whether grounds (a), (b) and (e) served on Subhas Chandra Bose are

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grounds which are relevant to "the maintenance of public order". All these grounds relate to cases of assault on solitary individuals either by knife or by using crackers and it is difficult to accept the contention of the respondent that these grounds have any relevance or proximate connection with the maintenance of public order. In the present case we are concerned with detention under s. 3( 1 ) of the Preventive Detention Act which permits apprehension and detention of a person likely to act in a manner prejudicial to the maintenance of public order. Does the expression "public(1) [1951] S.C.R. 167. order" take in every kind of infraction of order or only some categories thereof. It is manifest that every act of assault or injury to specific persons does not lead to public disorder.

When two people quarrel and fight and assault each other inside a house or in a street, it may be said that there is disorder but not public disorder. Such cases are dealt with under the powers vested in the executive authorities under the provisions of ordinary criminal law but the culprits cannot be detained on the ground that they were disturbing public order. The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order

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comes within the scope of the Act. A District Magistrate is therefore entitled to take action under s. 3 (1 ) of the Act to prevent subversion of public order but not in aid of maintenance of law and order under ordinary circumstances. In Dr. Ram Manohar Lohia v. State of Bihar(1), it was held by the majority decision of this Court that the expression "public order" was different and does not mean the same thing as "law and order". The question at issue in that case was whether the order of the District Magistrate, Patna under Rule 30(1)(b) of the Defence of India Rules, 1962 against the petitioner was valid. Rule 30( 1 )(b) provided that a State Government might, if it was satisfied with respect to a person that with a view to preventing him from acting in a manner prejudicial to 'public safety and maintenance of public order' it is necessary to do so, order him to be detained. The order of the District Magistrate stated that he was satisfied that with a view to prevent the petitioner from acting in any manner prejudicial to the 'public safety and the maintenance of law and order,' it was necessary to detain him. Prior to the making of the order the District Magistrate had, however, recorded a note stating that having read the report of the Police Superintendent that the petitioner's being at large was prejudicial to 'public safety' and 'maintenance of public order', he was satisfied that the petitioner should be detained under the rule. The petitioner moved this Court under Art. 32 of the Constitution for a writ of habeas corpus directing his release from detention, contending that though an order of detention to prevent acts prejudicial to public order may be justifiable ,an order to prevent acts prejudicial to law and order would not be justified by the rule. It was held by the majority judgment that

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what was (1) [1966] 1 S.C.R. 709, meant by maintenance of public order was the prevention of disorder of a grave nature, whereas, the expression 'maintenance of law and order' meant prevention of disorder of comparatively lesser gravity and of local significance. At page 746 of the Report, Hidayatullah, J. as he then was, observed as follows in the course of his judgment: "It will thus appear that just as 'public order' in the rulings of this Court (earlier cited) was said to comprehend disorders of less gravity than those affecting 'security of State', 'law and order' also comprehends disorders of less gravity than those affecting 'public order'. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an 'act may affect public order but not security of the State. By using the expression 'maintenance of law and order' the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules." The order no doubt mentioned another ground of detention, namely, the prevention of acts prejudicial to public safety, and in so far as 'it did so, it was clearly within the rule. But the order of detention must be held to be illegal, though it mentioned a ground on which a legal order of detention could have been based, because it could not be said in what manner and to what extent the valid and invalid grounds operated on the mind of the authority concerned and contributed to the creation of his subjective satisfaction. It was accordingly held that the order of detention made by the District Magistrate was invalid and the petitioner should be

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set at liberty. In our opinion, the principle laid down in this case governs the decision in the present case also and the order of the District Magistrate, Howrah dated January 20, 1968 must be held to be ultra vires and illegal."

10. From the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court it can be said that the petition challenging the order of detention at pre-execution stage is maintainable, however, the powers can be exercised sparingly and in rare cases.

11. 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 06.02.2020 relying upon two FIRs 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 case of the petitioner falls under the category No.IV of the decision rendered by the Hon'ble Supreme Court in the case of Alka Gadia (Supra). 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

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to consider the case of the petitioner.

12. In view of the above, the petition is allowed. The order of detention dated 06.02.2020 passed by the respondent authority is hereby quashed and set aside. Rule is made absolute. Direct service is permitted.

(VIPUL M. PANCHOLI, J)

Pallavi