Bhavesh Vinodbhai Patel vs State Of Gujarat
2021 Latest Caselaw 17004 Guj

     C/SCA/16386/2021                              JUDGMENT DATED: 28/10/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16386 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1     Whether Reporters of Local Papers may be allowed                   No
      to see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy                  No
      of the judgment ?

4     Whether this case involves a substantial question                  No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                            BHAVESH VINODBHAI PATEL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR SANDIP M PATEL(5649) for the Petitioner(s) No. 1
MR. AMITKUMAR U SOLA(9932) for the Petitioner(s) No. 1
MR AKASH K CHHAYA, AGP (99) for the Respondents
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                     Date : 28/10/2021
                     ORAL JUDGMENT

1. Rule. Mr.Akash K. Chhaya, learned Assistant Government Pleader, waives service of notice of Rule for the respondents.

2. This petition is filed by the petitioner under Article 226 of the Constitution of India with the following prayers:

"(A) Quash and set aside the order of preventive

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detention at pre-execution stage passed by the respondents on the basis of above referred offence registered against the petitioner, declaring the same to be illegal, arbitrary, mala fide, null and void and

(B) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to stay the implementation, execution, operation and enforcement of the order of preventive detention during the pendency of this petition, and

(C) grant any other relief or pass any other order, which the Honourable Court may consider just and proper in the facts and circumstances of the case and in the interest of justice."

2. Heard Mr.Sandip M. Patel, learned advocate for the petitioner and Mr.Akash K. Chhaya, learned Assistant Government Pleader for the respondents.

3. It is submitted by the learned advocate for the petitioner that five FIRs have been registered against the petitioner during the period between 2013 to 2019 for the alleged offences punishable under the provisions of the Prohibition Act. Learned advocate has referred the details given in the memo of the petition as well as referred copies of the said FIRs. It is submitted that the petitioner is not named in the FIR registered in the year 2019 and now, the petitioner received instructions that the respondent authority has issued Press Note on 02.08.2021 wherein it is stated that the respondent detaining authority has passed an order of detention dated 25.03.2019 against the petitioner relying upon the said five FIRs. The petitioner has, therefore, filed this

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petition at pre-execution stage.

3.1 It is contended by the learned advocate for the petitioner that the order of detention was passed in the year 2019 and the same is yet not executed. He has also contended that the aim and object of the Act is to curb the anti-social activities.

3.2 Learned advocate for the petitioner submitted that this petition is maintainable and this Court can exercise powers at pre-execution stage. Learned advocate has placed reliance upon the decision rendered in the case of Additional Secretary to the Government of India V/s Alka Gadia reported in 1992 (Supp) SCC 596, more particularly, Paragraph-30 thereof.

3.3 Learned advocate has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Pushkar Mukherjee and others v/s The State of Bengal reported in AIR 1970 SC 852 and more particularly, Paragraph-14 thereof. He has also placed reliance upon the following decisions:

(1) Rekha V/s State of Tamil Nadu reported in 2011 (5) SCC 244

(2) Deepak Bajaj V/s State of Maharashtra reported in 2018(16) SCC 14

4. On the other hand, learned Assistant Government

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Pleader has opposed this petition and submitted that looking to the conduct of the petitioner, this Court may not exercise discretion in his favour. It is submitted that though the order of detention has been passed against the petitioner on 25.03.2019 and though respondent No.2 passed an order dated 03.05.2021 directing the petitioner to remain present before the District Superintendent of Police, Navsari or the Gandevi Police Station, Dist.: Navsari, within a period of 30 days, till date, the petitioner is not available and, therefore, Press Note was issued by the concerned authority on 02.08.2021. Learned Assistant Government Pleader has placed reliance upon the decision rendered by this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod V/s State of Gujarat and another reported in 2015(1) GLR 703. Learned Assistant Government Pleader has also placed reliance upon the order dated 18.6.2020 in the case of Mukeshbhai Versibhai Desai V/s State of Gujarat in Letters Patent Appeal No.108 of 2020. Learned Assistant Government Pleader lastly placed reliance on the judgment dated 07.09.2021 passed by this Court in Special Civil Application No.8628 of 2021 and allied matters. After referring to the said decision, it is contended that though the petition at pre- execution stage is maintainable, scope of exercise of such power is very limited and such powers can be exercised in exceptional and rare case. It is submitted that five FIRs have been registered against the petitioner and petitioner is not available since 2019 and, therefore, the case of the petitioner does

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not fall under rare or exceptional case. It is, therefore, urged that this petition be dismissed.

5. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the respondent detaining authority has already passed an order of detention dated 25.03.2019 relying upon five different FIRs which have been registered against the petitioner. It is not in dispute that the said order of detention has not been served to the petitioner and, therefore, the concerned authority has issued Press Note dated 02.08.2021, copy of which is placed on record at Page-27 of the compilation. This Court has considered similar contention raised by the learned advocate for the petitioner in the case of Santishsinh Narendrasinh Chauhan Vs. State of Gujarat and this Court, vide judgment dated 07.09.2021 passed in Special Civil Application No.8628 of 2021, after considering the various decisions of this Court as well as the Hon'ble Supreme Court, has observed in Paragraphs-6.14 to 6.17, 6.19 and 6.21 as under:

"6.14 In the case of Mukeshbhai Versibhai Desai (supra), the appeal was filed by the concerned appellant against the order passed by the learned Single Judge by which the petition filed by the concerned petitioner at pre-detention or pre-execution stage was dismissed, the Division Bench has considered similar type of submissions canvassed by learned advocate of the present petitioners and after considering the various decisions rendered by the Hon'ble Supreme Court dismissed the Letters

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Patent Appeal. The Division Bench has observed in paragraph 25 as under:

"25. In the present case, the appellant, herein, thought fit to challenge the detention order at the preexecution stage without having knowledge about the reasons and / or grounds for issuance of the detention order, and therefore, could not have questioned the validity and/or sufficiency of the reasons for issuance of the impugned detention order, at that stage. In the absence of service of the impugned detention order, the relevant materials, containing the reasons and / or grounds for issuance of the said impugned order of detention, could not be disclosed to the appellant nor the learned Single Judge had any opportunity to examine such materials, at that stage. Indisputably, at the preexecution stage, the scope for challenging the order of detention is very limited. An order of detention can be struck down at the preexecution stage, in the rarest of rare case on certain specified limited grounds, which have been summarized by the Hon'ble Supreme Court of India in the case of Additional Secretary to the Government of India Vs. Smt. Alka Subhash Gadia&Anr.",(Supra)."

As per the aforesaid observation of the Division Bench, the concerned appellant- petitioner could not have questioned the validity/sufficiency of the reasons for issuance of the detention order at pre- execution stage as the petitioner was not having any knowledge about the reasons and/or grounds for issuance of the detention order. In the present case, admittedly till date, the order of detention has not been passed against the petitioner.

6.15 The Division Bench has, thereafter, observed in paragraph 31 which reads as under:

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"31. It is clear that the Court was also of the opinion that in some genuine and exceptional cases, power can be exercised by the Courts to interfere with the detention order even at the preexecution stage. However, the detenu cannot claim such exercise of power as a matter of "right" and it is purely a discretion of the Court, which has to be exercised judicially on well settled principles. This is so stated in the following words:

"32. Thirdly, in the rare cases where the detenu, before being served with them, learns of the detention order and the grounds on which it is made, and satisfies the Court of their existence by proper affirmation, the Court does not decline to entertain the writ petition even at the pre-execution stage, of course, on the very limited grounds stated above. The Court no doubt even in such cases is not obliged to interfere with the impugned order at that stage and may insist that the detenu should first submit to it. It will, however, depend on the facts of each case. The decisions and the orders cited above show that in some genuine cases, the Courts have exercised their powers at the pre-execution stage, though such cases have been rate. This only emphasises the fact that the courts have power to interfere with the detention orders even at the pre-execution stage but they are not obliged to do to not will it be proper for them to do so save in exceptional cases. Much less can a detenu claim such exercise of power as a matter of right. The discretion is of the Court and it has to be exercised judicially on well-settled principles."

Thus, from the aforesaid observation, it can be said that in some genuine and exceptional case, the powers can be exercised by the Courts to

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interfere with the detention order even at the pre-execution stage. However, the detenu cannot claim such exercise of power as matter of right and it is purely discretion of the Court which has to be exercised judicially on well settled principles.

6.16 In the facts of the present case, as discussed hereinabove, the petitioner cannot ask or claim as a matter of right that this Court shall exercise the powers before even the detention order is passed against the petitioner.

6.17 In the case of Bhaurao Punjabrao Gawande (supra), the Hon'ble Supreme Court has observed in paragraphs 42, 62 and 63 as under:

"42. On this question, our attention has been invited by the learned counsel for both the sides to several decisions of this Court. Having gone through those decisions, we are of the view that normally and as a general rule, an order of detention can be challenged by the detenu after such order as also the grounds of detention have been received by him and the order is executed. In exceptional cases, however, a High Court or this Court may exercise extraordinary powers to protect a person against an illegal invasion of his right to freedom by protecting him while still he is free by issuing an appropriate writ, direction or order including a writ in the nature of mandamus questioning an order of detention and restraining the authorities from interfering with the right of liberty of an individual against whom such order is made.

62. The counsel relied upon certain other decisions wherein the order was quashed and set aside. There, however, the order was executed and the detenu surrendered.

As already held by us, at the second stage

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i.e. after the order of detention is executed and the person is served with the grounds of detention, he can challenge such order and the court will decide the legality or otherwise of the action.

63. From the foregoing discussion, in our judgment, the law appears to be fairly well settled and it is this. 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 prejudical 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."

Thus, from the aforesaid observation made by the Hon'ble Supreme Court, it is clear that interference by a Court of law at the pre- execution 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."

    xxx xxx xxx

    6.19     It  is   also  well  settled  that

equitable jurisdiction under Article 226 of

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the Constitution of India which is discretionary in nature should not be exercised ordinarily where the proposed detenu successfully evades the service of the order. If, in every case, the detenue is permitted to challenge and seek stay of the operation of the order before its execution, the very purpose of the order and the law under which it is made will be frustrated. However, as observed hereinabove, powers can be exercised in exceptional and rare cases if the case of the detenu falls under any of the categories mentioned in the decision rendered by the Hon'ble Supreme Court in the case of Alka Gadia (supra).

xxx xxx xxx

6.21 In view of the aforesaid discussion, this Court is of the view that the petition filed under Article 226 of the Constitution of India at pre-execution stage is though maintainable, the scope of interference is very limited. This Court can exercise the powers under Article 226 of the Constitution of India in exceptional and rare cases if the case of the concerned petitioner-detenu falls under any of the grounds stated in the decision rendered in the case of Alka Gadia (supra). The petitioners have failed to point out that their case is an exceptional or rare case and falls under any of the categories stated in the aforesaid decision."

6. Insofar as the contention of the learned advocate for the petitioner that the order of detention was passed in the year 2019 and the same was not executed is concerned, the same is misconceived because the order of detention was passed on 25.03.2019 and since the petitioner was absconding, the same could not be executed. Even

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respondent No.2 passed an order dated 03.05.2021 directing the petitioner to remain present either before District Superintendent of Police, Navsari or Gandevi Police Station, Dist.: Navsari within a period of thirty days. However, the petitioner did not appear before the said authorities and, therefore, Press Note dated 02.08.2021 was issued by the Gandevi Police Station.

7. In view of the above discussion and in view of the aforesaid decisions rendered by the Hon'ble Supreme Court as well as this Court, if the facts of the present case are examined, this Court is of the view that the case of the petitioner does not fall under any of the categories mentioned in Paragraph-30 of decision rendered by the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India V/s Alka Gadia (supra). The case of the petitioner cannot be treated as exceptional or rare case.

8. The petition is, therefore, dismissed. Rule is discharged.

(VIPUL M. PANCHOLI, J) piyush