Santoshsinh Narendrasinh ... vs State Of Gujarat
2021 Latest Caselaw 13532 Guj

      C/SCA/8628/2021                              JUDGMENT DATED: 07/09/2021




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 8628 of 2021
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 4933 of 2021
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 2924 of 2020
                                    With
                R/SPECIAL CIVIL APPLICATION NO. 9974 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
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                    SANTOSHSINH NARENDRASINH CHAUHAN
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SMIT P VAGHELA(10653) for the Petitioner(s) No. 1
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MS JYOTI BHATT, AGP(1) for the Respondent(s) No. 1,2,3,4,5,6,7
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     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                               Date : 07/09/2021

                         COMMON ORAL JUDGMENT

1. All these petitions are filed under Article 226 of the

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Constitution of India in which the concerned petitioners have prayed that the order of preventive detention which is likely to be passed against concerned petitioner be quashed and set aside at pre-execution stage.

2. Looking to the issue involved in the present petitions, all these petitions are heard together and decided by this common judgment.

3. Heard learned advocate Mr.Sandip M Patel for the petitioners in Special Civil Application Nos. 4933 of 2021, 8628 of 2021 and 9974 of 2021 and learned advocate Mr.Sanjay Prajapati for the petitioner in Special Civil Application No. 2924 of 2020 and learned AGP Ms.Jyoti Bhatt for the respondent-authorities. For the sake of convenience, the facts narrated in the petition being Special Civil Application No.8628 of 2021 are considered.

4. Learned advocate for the petitioner submitted that the petitioner has been implicated in nine cases for the offences which are punishable under the Prohibition Act on the basis of the FIRs which have been filed before the concerned police stations. Learned advocate Mr.Patel has referred to the averments made in para no.3.2 of the petition. Mainly, it has been contended by the learned advocate for the petitioner that the petitioner has been falsely implicated in all the aforesaid cases. The petitioner was not present at the place of incident and the muddammal liquor was seized from the other co-accused. It is submitted that in some of the cases during the course of investigation, even after a period of approximately one year, on the basis of the statement of co-accused, the petitioner has been falsely implicated.

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Learned advocate has referred the details given in the aforesaid paragraph in support of his contention.

4.1 Learned advocate Mr.Patel, thereafter, submitted that the respondent Commissioner of Police i.e. respondent no.2 herein has, vide communication dated 5.6.2021, directed the police inspectors of the concerned police stations that the investigation of six FIRs, details of which have been given in the said communication, be transferred to Police Inspector, Meghaninagar police station, copy of the said communication is placed on record at page no.57. Thus, it is contended that now the investigation of all the aforesaid six cases has been transferred to Meghaninagar police station. At this stage, it is contended that the respondent no.2 is the detaining authority and the petitioner is having reasonable apprehension that the order of detention will be passed against the petitioner on the basis of the FIRs, the details of which have been given in para 3.2 of the memo of the petition. The petitioner has, therefore, preferred the present petition at this stage before the order of detention is passed against the petitioner.

4.2 Learned advocate Mr.Patel has supplied separate paper book containing various decisions rendered by this Court as well as the Hon'ble Supreme Court. Learned advocate has first of all referred to the decision rendered by the Hon'ble Supreme Court in the case of Additional Secretary to the Government of India V/s Alka Gadia reported in 1992 (Supp) SCC 596, copy of which is placed at page no.31 of the paper book. After referring to the relevant paragraph of the said decision, learned advocate has submitted that the case of the petitioner falls under Ground no.III and IV of the paragraph 29 of the said decision.

       C/SCA/8628/2021                                 JUDGMENT DATED: 07/09/2021




4.3              It is submitted at this stage that this Court is having power

to entertain the petition at pre-execution stage under five circumstances which are narrated in the said decision. Ground No.III provides that if the order of detention is passed for a wrong purpose, the same can be interfered with. Similarly, ground IV provides that if the order of detention is passed on vague, extraneous and irrelevant grounds, the High Court is empowered to interfere with such type of order of detention passed by the concerned detaining authority.

4.4 Learned advocate Mr.Patel has pointed out from 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 that the Hon'ble Supreme Court explained the term `vague' in paragraph 14 of the said decision and therefore learned advocate has referred to the said paragraph. Learned advocate has also referred to paragraphs 8 and 15 of the said decision in support of the his contention and pointed out difference between public order and law and order situation.

4.5 Learned advocate Mr.Patel has thereafter referred to the decision rendered by the Hon'ble Supreme Court in the case of Rekha V/s State of Tamil Nadu reported in 2011 (5) SCC 244, more particularly, referred to paragraph 30 of the said decision.

4.6 Learned advocate Mr.Patel has further placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Deepak Bajaj V/s State of Maharashtra reported in 2018(16) SCC 14. Learned advocate has referred and relied upon paragraphs 43 to 47 of

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the said decision in support of his contention.

4.7 It is submitted that in the present case, learned AGP has stated before this Court that sponsoring authority has sent proposal to the detaining authority for passing appropriate order of detention against the present petitioner and therefore the petitioner has filed the present petition which is maintainable.

4.8 It is also contended that as per the decision rendered by the Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod V/s State of Gujarat and another reported in 2015(1) GLR 703, the petition challenging the order of detention at pre-execution stage is maintainable. However, powers can be exercised sparingly and in exceptional cases. It is submitted that the case of the petitioner falls under this category and therefore this Court may exercise the powers in favour of the petitioner. Learned advocate Mr.Patel has also referred to the decision rendered by the Division Bench of this Court in the case of Mukeshbhai Versibhai Desai V/s State of Gujarat passed on 18.6.2020 in Letters Patent Appeal No.108 of 2020. Learned advocate has referred to paragraph 51 of the said order of the Division Bench of this Court.

4.9 Learned advocate Mr.Patel, therefore urged that this petition be allowed and proposed order of detention which is to be passed by the detaining authority be quashed and set aside.

5. On the other hand, learned AGP Ms.Bhatt has opposed all these petitions and specifically contended, under the instructions, that till date the order of detention has not been passed against the petitioners. Therefore, it is not open for the petitioners to file present

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petition. The case of the petitioner does not fall under the category of exceptional cases as observed by the Full Bench of this Court in the case of Vijaysinh @ Gatti Pruthvisinh Rathod (supra).

5.1 It is further submitted that whether the grounds of so called order of detention are vague or not may not be examined by this Court at this stage in absence of any order of detention passed against the petitioner by the concerned detaining authority. Learned AGP has thereafter submitted that against the petitioner of Special Civil Application No.8628 of 2021, twelve FIRs have been filed in last three years. Similarly, against the petitioner of Special Civil Application No. 9974 of 2021, seven FIRs have been filed in last three years and against the petitioner of Special Civil Application No. 4933 of 2021 and 2924 of 2020, twenty one FIRs have been filed since last three years. Thus, looking to the record of the concerned petitioners, it cannot be said that the case of the petitioners falls under exceptional cases.

5.2 Learned AGP has placed reliance upon the order dated 3.12.2020 passed by this Court in the case of Indravadan Jesingbhai Dudhiya v/s Commissioner of Police passed in Special Civil Application No.13681 of 2020. Learned AGP has placed reliance upon paragraphs 5, 13 to 15 of the said order in support of her contention.

5.3 Learned AGP has thereafter placed reliance upon the decision rendered by the Division Bench of this Court in the case of Mukeshbhai Versibhai Desai (supra). Learned AGP has referred to the relevant paragraphs of the decision rendered by the Division Bench of this Court and thereafter contended that the Division Bench has considered similar type of submissions which have been canvassed by

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learned advocate for the petitioners in the present matters and thereafter LPA filed against the order of the learned Single Judge came to be dismissed. Thus, when there is a direct decision of the Division Bench of this Court which is binding to the learned Single Judge, these petitions may not be entertained. Learned AGP has, therefore, urged that all these petitions be dismissed.

5.4 Learned AGP has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Maharashtra V/s Bhaurao Punjabrao Gawande, reported in (2008)3 SCC 613. Learned AGP has more particularly placed reliance upon the observation made in paragraphs 62 and 63 of the said decision.

6. Having heard learned advocates appearing for the parties and having gone through the material placed on record, the question which is required to be examined in the present group of petitions is whether the petition filed at pre-execution stage is maintainable or not, and if it is maintainable, what is the scope of interference under Article 226 of the Constitution of India?

6.1 For deciding the aforesaid issue, first of all, I would like to refer the facts of the case of the petitioner of Special Civil Application No.8628 of 2021. It is not in dispute that till date, the order of detention has not been passed against the petitioner and only on the basis of the apprehension, the petitioner has filed the present petition that the order of detention will be passed against him. No doubt, during the course of hearing, learned AGP, at the relevant point of time submitted that proposal is sent by the sponsoring authority to the detaining authority for passing appropriate order against the petitioner under the provisions

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of the Gujarat Prevention of Antisocial Activities Act (PASA). However, the fact remains that till today, no order of detention has been passed against the petitioner under PASA.

6.2 Thus, keeping in view the aforesaid factual aspects, the decisions upon which reliance is placed by the learned counsels for the parties are required to be examined. Learned advocate for the petitioner has firstly placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Alka Gadia (supra). The Hon'ble Supreme Court, has observed in paragraph 29 of the said decision that the Court can interfere with the order of detention at pre-execution stage where the court is 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.

6.3 Thus, from the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the order of detention passed by the concerned detaining authority can be interfered with at pre-execution stage under certain circumstances. It is pertinent to note at this stage that in the present case, till today, no order of detention has been passed against the petitioner.

6.4 In the case of Deepak Bajaj (supra) upon which reliance is placed by learned advocate for the petitioner, the Hon'ble Supreme Court was considering the order of detention dated 22.5.2008 passed by the concerned detaining authority against the concerned detenu,

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therefore, in the said case, the order of detention was under challenge and while considering the case of the concerned detenu, the Hon'ble Supreme Court has made certain observations. In the present case, admittedly, till today, the order of detention has not been passed by the detaining authority against the present petitioner.

6.5 In the case of Rekha (supra), the order of detention which was passed against the concerned detenu was under challenge before the Hon'ble Supreme Court and while considering the grounds of detention of the said order, the Supreme Court has made observation in para 30 which reads as under:

"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 he land sufficient to deal with the situation? If the answer is 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 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."

Thus, in the aforesaid decision, after considering the grounds of detention and after considering the legality of the said order, the Hon'ble Supreme Court was of the view that the concerned detenu can be tried under the provisions of the Penal Code and the Drugs and Cosmetics Act and provisions of the said act were sufficient to deal with the situation and therefore the order of detention was declared as illegal.

6.6 In the present case, as observed hereinabove, till date the order of detention has not been passed against the petitioner and

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therefore the aforesaid decision would not render any assistance to the present petitioner.

6.7 In the case of Pushkar Mukherjee (supra), the Hon'ble Supreme Court was considering the order of detention which was passed against concerned detenu and while considering the grounds of detention, the Hon'ble Supreme Court has observed in paragraphs 14 and 15 as under:

"14. It appears to us that ground no. 2 is extremely vague. Ground no. 2 states "You have become a menace to the society and there have been disturbances and confusion in the lives of peaceful citizens of Baraset and Khardah P.S. areas under 24- Parganas District and the inhabitants thereof are in constant dread of disturbances of public order." It is manifest that this ground is extremely vague and gives no particulars to enable the petitioner to make an adequate representation against the order of detention and thus infringes the constitutional safeguard provided under Art 22 ( 5 ) Reference may be made in this connection to the decision of this court in the state of Bombay v. Alma Ram ion of this Court in The State Sridhar Vaidva(1) in which Kania of Bombay v. Atma Ram C.J. observed as follows:

"What is meant by vague ? Vague can be considered as the antonym of 'definite'. If the ground which is supplied is incapable of being understood or defined with sufficient certainty it can be called vague. It is not possible to state affirmatively more on the question of what is vague. It must vary according to the circumstances of each case. It is however improper to contend that a ground is necessarily vague if the only answer of the detained person can be to deny it. That is a matter of detail which has to be examined in the light of the circumstances of each case. If on reading the ground furnished it is capable of being intelligently understood and is sufficiently definite to furnish materials to enable the detained person to make a representation against the order of detention it cannot be called vague. The only argument which could be urged is that the language used in specifying the ground is so general that it does not permit the detained' person to legitimately meet the charge against him because the only answer

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which he can make is to say that he did not act as generally suggested. In certain cases that argument may support the contention that having regard to the general language used in the ground he has not been given the earliest opportunity to make a representation against the order of detention. It' cannot be disputed that the representation mentioned in the second part of article 22(5). must be one which on being considered may give relief' to the detained person."

15. It was, however, argued by Mr. Debabrata Mukherjee on behalf of the respondent that even though ground no. 2 may be vague, the other grounds supplied to the detenu are not vague and full and adequate particulars have been furnished. But it is well- established that the constitutional requirement that the grounds must not be vague must be satisfied with regard to each of the grounds communicated to the person detained subject to the claim of privilege under cl. (6) of Art. 22 of the Constitution 'and therefore even though one ground is vague and the other grounds are not vague, the detention is not in accordance with procedure established by law and is therefore illegal.--(See the decision of this Court in Dr. Ram Krishan Bhardwaj v. The State of Delhi(1). For these reasons we hold that the order of detention made against the petitioner, Pushkar Mukherjee by the District Magistrate, 24- Parganas on September 19, 1967 and 'the consequent order of the Governor of West Bengal dated June 12, 1968 confirming the order of detention were illegal and ultra vires and the petitioner is entitled to be set at liberty forthwith."

In the present case, as observed hereinabove, till date the order of detention has not been passed against the petitioner and therefore the said decision would not be applicable to the facts of the present case.

6.8 It is further submitted by learned advocate for the petitioner that the preventive detention endangers the fundamental rights of personal liberty of a citizen as guaranteed under Article 21 of the Constitution of India. Preventive detention can be justified or satisfied only if there is cogent and convincing evidence or material on record. It was also submitted by learned advocate for the petitioner that

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mere registration of the FIRs before different police stations is not sufficient to pass order of preventive detention. It is further contended that if the person against whom the order of preventive detention has been passed comes to the Court at the pre-execution stage and satisfies the Court that the detention order is illegal, there is no reason as to why the Court should stay its hand and allow such person to come to jail even though he is bound to be released subsequently.

6.9 It is pertinent to note that similar type of contentions were raised in Letters Patent Appeal No.108 of 2020 by the concerned advocate of the appellant-proposed detenu and the Division Bench has considered the contentions raised by the concerned advocate and thereafter dismissed the Letters Patent Appeal.

6.10 At this stage, it is pertinent to note that against the petitioner of petitioner of Special Civil Application No.8628 of 2021, twelve FIRs have been filed in last three years. Similarly, against the petitioner of Special Civil Application No. 9974 of 2021, seven FIRs have been filed in last three years and against the petitioner of Special Civil Application No. 4933 of 2021 and 2924 of 2020, twenty one FIRs have been filed since last three years

6.11 Now, it is the contention of the learned advocate for the petitioner that the petitioner was not present when the raid was carried out at the place of incident and co-accused were arrested with muddammal liquor and he was implicated on the basis of the statement of co-accused and some of the co-accused have been arraigned after a period of approximately one year. It is also submitted that respondent no.2-Police Commissioner has now transferred the investigation of five

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FIRs registered before different police stations to Meghaninagar police station. However, the aforesaid submissions are totally misconceived. The petitioner has not challenged the order of transfer of investigation from one police station to another passed by respondent no.2 in the present petition or by filing appropriate proceeding before appropriate forum. These petitions are not filed under Section 482 of the Criminal Procedure Code for quashing and setting aside the FIRs. The petitioner is only having apprehension that on the basis of the said FIRs, the order of detention will be passed against him. However, it is too premature to consider such type of submission before the order of detention has been passed against the petitioner.

6.12 It is contended by learned advocate for the petitioner that the case of the petitioner falls under the category of exceptional cases. However, this Court is of the view that the said contention is also misconceived. When number of FIRs have been filed against the petitioner, as per the details given by the learned AGP, the case of the petitioner does not fall under the aforesaid category and therefore in the facts of the present case, this court is not inclined to call for the record and/or proposal from the concerned respondent authority. This Court is not inclined to examine the proposed grounds of detention before the order of detention is passed against the petitioner. Thus, the aforesaid submissions are misconceived and this Court is not inclined to accept the said contentions.

6.13 At this stage, this Court would like to refer the order dated 3.12.2020 passed by this Court in Special Civil Application No.13681 of 2020. In similar type of case which was filed by the concerned petitioner stating that order of detention has been passed against the co-

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accused and therefore the petitioner is having reasonable apprehension that similar type of order of detention will be passed against him, this Court has, after referring to the various decisions rendered by the Hon'ble Supreme Court as well as the orders passed by this Court, observed in paragraph 14 as under:

"14. It is also further clear that the petition cannot be entertained though the same is maintainable, more particularly, at pre- execution stage even if the order of detention is passed against co-accused. In the present case, there is no averment in the petition that the order of detention has been passed even against co-accused. The tenor of the petitions that are filed in the Court indicate that the burden shifted on the Court to inquire into from the respondent detaining authorities as to whether there is a case for the detaining authority to pass an order of detention, the Courts cannot be made substitutes of detaining authorities to inquire into the mind of the detaining authority to suggest whether the detention orders are necessary to be passed."

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 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

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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:

"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

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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 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

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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 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.

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6.18          In absence of any grounds of detention, even before the

order of detention is passed, it cannot be said that the grounds of detention are vague, extraneous and/or irrelevant. Thus, this Court is of the view that the case of the petitioner does not fall under Grounds III and IV of case of Alka Gadia (supra).

6.19 It is also well settled that equitable jurisdiction under Article 226 of 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).

6.20 At this stage, this Court would also like to refer to the order dated 8.10.2018 passed by the Division Bench of this Court in Letters Patent Appeal No.1281 of 2018 passed in the case of Piyush @Lakhan Manojbhai @ Bhavsar V/s Police Commissioner. The Division Bench has observed in paragraph 4 as under:

"4. During the course of hearing, learned counsel appearing for the appellant has fairly admitted that there is no order of detention passed under the provisions of PASA Act of 1985. If no such order of detention is passed, we fail to understand how such a petition, seeking the relief as sought for, could have been filed. While it is open for the appellant to file such a petition, when the order of detention is passed, if there is any ground available to

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challenge the same before the same is executed, but at the same time, if order of detention is not passed under the provisions of the PASA Act, no such petition can be maintained seeking the relief as sought for."

From the aforesaid observation made by the Division Bench of this Court, it is clear that the Division Bench has not entertained the matter as the order of detention was not passed against the concerned appellant.

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.

7. Thus, in the facts and circumstances of the present case, this Court is not inclined to exercise the powers under Article 226 of the Constitution of India in favour of the petitioners. Accordingly, all these petitions are dismissed. Notice is discharged in each of the petitions. Interim relief, if any, granted stands vacated.

(VIPUL M. PANCHOLI, J) SRILATHA