Pintu Parshotambhai Patel vs State Of Gujarat
2021 Latest Caselaw 16570 Guj

     C/SCA/9643/2020                            ORDER DATED: 22/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9643 of 2020
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                       PINTU PARSHOTAMBHAI PATEL
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR VALIMOHAMMED PATHAN(6383) for the Petitioner(s) No. 1
MR JAYNEEL S PARIKH, AGP (99) for the Respondents
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                  Date : 22/10/2021
                   ORAL ORDER

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

"(A) YOUR LORDSHIPS 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.3 of passing the order of detention under the PASA Act against the petitioner and if the order of detention is already passed by respondent No.2 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.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.

Xxxx"

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2. Heard Mr.Valimohammed Pathan, learned advocate for the petitioner and Mr.Jayneel S. Parikh, learned Assistant Government Pleader for the respondents.

3. It is submitted by the learned advocate for the petitioner that two FIRs have been registered against the petitioner under the provisions of the Gujarat Prohibition Act. On the basis of the said FIRs, the petitioner is having apprehension that order of detention will be passed against him. Therefore, the petitioner has filed the present petition.

4. When the matter is called out, learned Assistant Government Pleader has placed on record the order dated 23.11.2017 passed by the respondent authority. It is stated in the said order that two FIRs have been registered against the petitioner under the provisions of the Gujarat Prohibition Act one in the year 2015 and another in the year 2017. Details of the said FIRs are mentioned in the order of detention. It is submitted that looking to the activity carried out by the petitioner, the detaining authority after proper application of mind has passed the order of detention against the petitioner in the year 2017. However, till date, the order of detention has not been served to the petitioner. It is, therefore, urged that this petition may not be entertained.

5. Learned advocate for the petitioner at this stage submitted that the case of the petitioner falls

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under category of Clause-(iv) of Paragraph-30 of 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.

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

5.2 It is submitted that the petition at pre- execution stage is maintainable and under certain circumstances, this Court can exercise powers under Article 226 of the Constitution of India.

6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the order of detention has already been passed by the respondent detaining authority on 23.11.2017 against the petitioner. While passing the said order, the respondent detaining authority has referred two FIRs which have been filed against the petitioner under the provisions of the Gujarat Prohibition Act. On the basis of the said FIRs, the detaining authority has considered that the petitioner is required to be detained under Section 3(2) of the Gujarat Prevention of Anti Social Activities Act, 1985 (hereinafter referred to as "the Act" for short) by treating the

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petitioner as Bootlegger as defined under Section 2(b) of the Act.

7. At this stage, this Court would like to refer the decisions rendered by the Hon'ble Supreme Court as well as this Court in similar type of matters. In the case of Additional Secretary to the Government of India and Others Versus Smt. Alka Subhash Gadia and Another (supra), the Hon'ble Supreme Court has observed in Paragraph-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 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 selfimposed 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

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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 a limited 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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8. From the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the petition filed at pre-execution stage is maintainable and the order of detention can be set aside if the case of the detenu would fall under any of the categories referred in the said paragraph. This Court is of the view that the case of the petitioner would fall under Clause-(iv) of the said decision.

9. 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 has, while answering the reference, held as under:

"(1) As both the Division Benches of this Court in the case of Manchharam Samaram Meena V. State of Gujarat (supra) and in the case of Chirag @ Vijay Bhikhubhai Chitrabhuj V. State of Gujarat (supra) are not on disagreement for the maintainability of the petition for challenging the order of detention under Article 226 of the Constitution at the pre-execution stage, no further view deserves to be expressed.

(2) Further, if the order of detention is challenged at pre execution stage under Article 226 of the Constitution, the High Court by way of self imposed restriction may examine as to whether the case is covered by the criteria laid down by the Apex Court in the case of Addl. Secy. To the Govt. of India V. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj V. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra) and thereafter may call for the relevant record from the detaining authority, but such would depend upon sound exercise of judicial discretion of the High Court under Article 226 of the Constitution and it cannot be said that in all cases, it would be obligatory for the High Court to satisfy itself as to

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whether the detention order is passed in consonance with the scheme of the enactment under which the detention order is passed or whether the detention order suffers from the vice of illegality or not, save and except the criteria as laid down by the Apex Court in the case of Addl. Secy. To the Govt. of India V. Alka Subhash Gadia (Smt.)(supra) and Deepak Bajaj V. State of Maharashtra & Another, reported in (2008) 16 SCC 14 (supra).

(3) The High Court while exercising the power under Article 226 of the Constitution of India in a petition for challenging the order of detention at the pre execution stage may bear in mind the observations made by the Apex Court in the case of State of Maharashtra @ Ors. V. Bhaurao Punjabrao Gawande (supra) at paragraph 63 relevant of which reads as under:- "63. ... As a general rule, an order of detention passed by a Detaining Authority under the relevant 'preventive detention' law cannot be set aside by a Writ Court at the pre execution or pre arrest stage unless the Court is satisfied that there are exceptional circumstances specified in Alka Subhash Gadia. The Court must be conscious and mindful of the fact that this is a 'suspicious jurisdiction' i.e. jurisdiction based on suspicion and an action is taken 'with a view to preventing' a person from acting in any manner prejudicial to certain activities enumerated in the relevant detention law. Interference by a Court of Law at that stage must be an exception rather than a rule and such an exercise can be undertaken by a Writ Court with extreme care, caution and circumspection. A detenu cannot ordinarily seek a writ of mandamus if he does not surrender and is not served with an order of detention and the grounds in support of such order."

10. Thus, from the aforesaid observations made by the Full Bench of this Court, it can be said that the petition filed at pre-execution stage is

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maintainable. However, powers under Article 226 of the Constitution of India can be exercised by the High Court in exceptional cases.

This Court has considered the facts of the present case and this Court is of the view that the case of the petitioner would fall in exceptional and rare case and, therefore, this Court is inclined to exercise powers under Article 226 of the Constitution of India in favour of the present petitioner.

11. Similarly, the Division Bench of this Court in the case of Mukeshbhai Versibhai Desai Versus State of Gujarat (Order dated 18.06.2020 passed in Letters Patent Appeal No.108 of 2020) where the Division Bench has considered the similar issue and once again observed that the petition at pre-execution stage is maintainable but powers can be exercised by the High Court in rare cases.

As observed hereinabove, relying upon two FIRs which have been filed against the petitioner under the Gambling Act, the impugned order passed by the detaining authority under the provisions of the Act and in the facts of the present case, this Court is of the view that the case of the petitioner falls under the aforesaid category i.e. exceptional case.

12. 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

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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 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 comes

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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 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

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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 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."

13. 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:-

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"30. 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."

14. 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.

15. In view of the aforesaid discussion, I am inclined to exercise discretion in favour of the present petitioner. The petition is accordingly allowed. The impugned order of detention dated 23.11.2017 passed by the respondent - detaining authority is quashed and set aside. Rule is made absolute. Direct service is permitted.

(VIPUL M. PANCHOLI, J) piyush